Originating application under the Fair Work Act 2009 alleging unlawful termination of employment (Form 80)

Section 772(1) of the Fair Work Act 2009 says an employer must not terminate an employee's employment for reasons that include temporary absence because of a prescribed illness or injury, trade union membership or activity, filing a complaint against the employer, a protected attribute such as race, sex, age or disability, absence on parental leave, or reasonable absence for voluntary emergency management activity. The employee first applies to the Fair Work Commission (s 773). If the Commission certifies that reasonable attempts to resolve the dispute have failed or are likely to fail (s 776(3)(a)), the employee may bring an unlawful termination court application. Rule 34.04 of the Federal Court Rules 2011 requires Form 80 for terminations on or after 1 July 2009, accompanied by the certificate.

When you need it

• Your employment was terminated and you say it was for one of the reasons listed in section 772(1).
• The Fair Work Commission has dealt with the dispute and issued a certificate under section 776(3)(a).
• You need an interim injunction urgently: an application that includes one can be made without the certificate (s 778(b)).
• Not for a dismissal said to breach the general protections in Part 3-1 (Form 79) or adverse action because of a protected attribute (Form 81).

1. 1

   Complete the heading

   Fill in the District Registry and Division, your name as applicant and the employer as respondent. The Registry inserts the file number and hearing details.

2. 2

   Details of claim

   Set out the grounds for saying the employment was unlawfully terminated, and state each section of the Fair Work Act you rely on.

3. 3

   Relief sought

   Keep the relief you want (injunction, compensation, reinstatement or other) and give details. For compensation, state the amount claimed and how it is calculated, for example lost income.

4. 4

   Employment details

   Give the date employment started, your occupation and place of work, and the date it ended. Say whether written notice of termination was given and attach it if it was.

5. 5

   Extension of time and other relief

   Complete the extension section only if filing more than 14 days after the Commission issued its certificate, giving your reasons. Add any other relief in numbered paragraphs.

6. 6

   Addresses, service and signature

   Give your address for service (r 11.01) and email, say whether you intend to serve the respondent, then date and sign as applicant or lawyer.

• File within 14 days after the day the certificate was issued, or within any further period the Court allows (s 778(a)).
• File through eLodgment with the Commission's certificate (r 34.04(3)) and a statement of claim, affidavit or, in appropriate cases, a concise statement (E&IR-1 para 4.2). A filing fee applies - check the current fee schedule.
• Proceedings filed on Form 80 are generally listed in the National General Protections List for initial case management by a Registrar (E&IR-1 para 5.7).
• Serve the application and accompanying documents personally on the employer at least 5 days before the first hearing (r 8.06).

• The application to the Fair Work Commission must be made within 21 days after the termination took effect, unless the Commission allows more time for exceptional circumstances (s 774).
• If both parties agree within 14 days after the certificate, the Commission can arbitrate instead (s 777). Consider which forum suits you.
• A Fair Work Inspector bringing the application does not need the certificate (r 34.04(4)).