Update - On March 27 2008 the Federal Government made changes to current employment law as part of their new Industrial Relations policy. The industrial relations system is currently in transition as a result, and this page is no longer 100% accurate. Until we update this information, to find out how this new system might affect you and your employment rights, check out our Changes to the industrial relations system page.
If you've been unfairly or unlawfully sacked, there are steps you can take. Maybe you want to be financially compensated. Maybe you want your job back.
If you really have been unfairly or unlawfully sacked, you may be able to
- Lodge an unfair dismissal or unlawful termination claim with the Australian Industrial Relations Commission (AIRC)
- Make a complaint to the Victorian Equal Opportunity Commission under discrimination
- Lodge a complaint with the Victorian Workcover Authority for Occupational Health and Safety reasons.
Whatever you choose to do, you only have 21 days to file your complaint from the time you were sacked, so get things moving quickly!
Unfair dismissal
Unfair dismissal is when you claim that your termination of employment was harsh, unjust or unreasonable. You can’t lodge a claim if:
- Your employer employs less than 100 staff
- You are serving a six month qualifying period of employment
- You’re on probation
- You’re on a contract for a specified period of time
- You’re a casual employee with less than 12 months regular work
- You’re engaged on a seasonal basis only
- You’re dismissed for genuine operational reasons
To make a complaint, you have to be an employee, not a contractor or sub-contractor. You need to have actually been sacked by your employer - you can’t have quit your job.
Unlawful termination
Unlawful termination is when you claim that you were sacked for a reason that’s illegal, or that you didn’t get the required minimum amount of notice (or didn’t get the right amount of payment instead of notice).
For example, it’s illegal to sack someone because they’re a member of a union, if they’re sick or injured, or because they’re pregnant. These are known as 'prohibited reasons' .
Prohibited reason include:
- A temporary absence from work because you’re sick or injured
- Union membership
- Not being a union member
- Seeking office as or acting as a representative of employees
- Filing a complaint against your employer
- Any kind of discrimination
- Refusing to sign, negotiate, extend or vary an Australian Workplace Agreement
- Being absent due to maternity or parental leave
- Undertaking a voluntary emergency management activity
Constructive dismissal
If you were forced to resign or leave because of your employer’s behaviour, you may have a case for unlawful termination under the term ‘constructive dismissal’.
Constructive dismissal is when you are more or less forced out of your job by something your employer does, like threatening or assaulting you, or making working conditions so difficult you can’t keep doing your job.
Lodging a complaint about discrimination
You may have a legitimate complaint under Equal Opportunity laws if you think you were sacked for discriminatory reasons such as your:
- Gender
- Age
- Sexual orientation
- Gender identity
- Religious belief or activity
- Political belief or activity
- Marital status
- Industrial activities (or lack of industrial activity)
- Race
- Pregnancy or breastfeeding
- Parental status
- Carer status
- Disability or impairment
- Physical features
- Personal association with someone who has, or is assumed to have, one of the above personal characteristics
Lodging a complaint about Occupational Health and Safety (OH&S)
Everyone has the right to be safe at work. You shouldn’t have to:
- Work in an unsafe environment
- Work with unsafe equipment
- Follow unsafe work practices
- Work with people who hurt, bully or injure you
By law, your employer is required to provide a safe and healthy workplace.
You also have an obligation to make sure that you:
- Work in a way that’s safe
- Wear the safety equipment provided
- Follow any safety instructions
If you were sacked because you a raised health and safety issue, you may be able to get your old job back with help from the Victorian WorkCover Authority. Call them on 1800 136 089.
Next steps
If you do think you're eligible to lodge a complaint, think about what you want. Do you want your old job back? Do you want compensation for lost wages? You can’t claim for things like shock, distress or humiliation.
Get in touch with your union, Job Watch or the Workplace Rights Information Line for further information.
Links
Job Watch
Statewide community legal centre specialising in issues for workers in Victoria. Free and confidential advice.
Office of the Workplace Rights Advocate
Free, independent advice about your workplace rights.
Australian Industrial Relations Commission
Information about wages and conditions, superannuation, common rule awards and termination of employment.
Australian Council of Trade Unions
To find out which union you may belong to, and for free, general advice.
Victorian Workcover Authority
Information about health and safety issues, reporting a workplace incident and how to get assistance.
