Any Employee - (National System Or Not) - Can Take Unlawful Termination Action Against Their Employer Through The Fair Work Act

Ms Lorraine Anderson (the applicant) placed an application with Fair Work Australia to deal with an unlawful termination dispute (Miss Lorraine Anderson v Denning Road Lunch Supplies).

Unlawful reasons to terminate employment include: temporary absence from work because of illness or injury; trade union membership or otherwise; filing of a complaint against an employer, etc; race, colour, sex, sexual preference, age, physical or mental disability, marital status, etc, and in the case of the applicant - pregnancy.

A suggestion was made that the company was “not a national system employer”. If this was the case, the implicit argument would be that employer and its employees were not covered under the Federal Fair Work Act.

The applicant commenced employment with the company in September 2008 and the employer termed the employment as being of casual nature, although she was working regularly on an average of 30 hours per week up until May 2010 when she went on holidays. On her return to work her hours were reduced to 6 hours per week. The company claimed to have reduced the hours because the fill-in employee did a better job than [the applicant].

The applicant claimed the reduction was due to her pregnancy, and the employer as well as maintaining that termination had not occurred - claimed that as a casual employee the 6 hours were all that the company required.

Commissioner Cloghan in the first instance was therefore required to determine whether the employee was entitled to claim unlawful termination, specifically in relation to whether she was an ‘employee’ as defined by the Fair Work Act 2009 (the Act). The Commissioner found that the relevant part of the Act was not limited to national system employers and employees,….

In this Interim Decision the Commissioner found that the applicant had a right to apply within the provisions of the Act. The matter will be reconvened in an attempt to resolve the dispute.