If your employment has been terminated on the basis of your sex status, sexual orientation or gender identity you can either make an application to the Australian Human Rights Commission ("AHRC") or the Fair Work Commission ("FWC"). 1 The purpose of the application is to show that your employer has breached anti-discrimination laws. You can only make an application to one of these bodies to avoid what is called "double-dipping". If you first apply to the FWC, and either withdraw your complaint or it is terminated, you can then apply to the AHRC however you cannot apply to AHRC and subsequently to the FWC.

Even if you resigned, you can still make a claim for unfair dismissal if your resignation was due to bullying and harassment on the basis of your sex status, sexual orientation or gender identity. Bullying and harassment can take many forms but can include:

  1. Being misgendered on purpose;
  2. Being outed in the workplace without your permission; and/or,
  3. Being denied opportunities on the basis of your sex status, sexual orientation or gender identity.

You can make an application to the AHRC either by posting a hardcopy of your application to the Commission, emailing it to them or applying online via their website. 2 Your application will need to outline your employment history with your employer, the type of discrimination, when the discrimination occurred, details of the discrimination and details of your termination of employment. You can attach supporting documentation to your application to help the likelihood of success in your claim. 3 There is no fee associated with lodging an application with the Commission. You must lodge your application within twenty-four (24) months of the discrimination occurring; that is after the alleged acts, omissions or practices took place. 4

You can lodge an application to the FWC, similarly, either by post, email or fax. 5 Your application will need similar information as required by the AHRC. Lodging an application with the FWC will incur a fee of $74.90, however the amount required can change annually. You must lodge your application with the FWC within 21 days of the date of your termination , this is the last day you are employed and is not necessarily the last day you were at work. For example, it might be later than the last day you were physically at work if you were on paid leave when you were dismissed.

Once you have submitted your application and it has been reviewed, you will likely need to participate in a settlement conference. Many discrimination claims settle at this part of the process. This means that you and your employer reach an agreed outcome without having to engage in the court process which can often be expensive and time consuming. If you are unable to settle, then the matter will proceed to either a Court or Tribunal.

The primary remedy for unfair dismissal claims is monetary compensation (damages). If you end up having to file court proceedings, you may seek an order from the court for your employer to either engage in or stop engaging in certain behaviours. You can also seek an apology or retraction. These latter two remedies though are rare.

Footnotes

1 https://humanrights.gov.au/complaints/make-complaint

https://www.fwc.gov.au/form/apply-unfair-dismissal-form-f2

2 https://humanrights.gov.au/complaints/make-complaint

3 Examples of documents that can support your claim, include but are not limited to:- letters, separation certificates and or doctors certificates.

4 This timeframe only applies to discrimination claims made under the Sex Discrimination Act, for all other Federal Discrimination Legislation, an application must be lodged within six (6) months.

5 https://www.fwc.gov.au/form/apply-unfair-dismissal-form-f2

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.