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Unfair dismissal and unlawful termination

If you dismiss staff without a valid reason, you may be breaking the law. Federal laws cover two types of dismissal, unfair dismissal and unlawful termination. Under the Equal Opportunity Act 1984 (SA), termination because of discrimination is also unlawful.

What is unfair dismissal?

A dismissal is unfair when it is harsh, unjust or unreasonable. This could refer to the reason for dismissal or the way it happened.

What is unlawful termination?

The Fair Work Act 2009 (Cth) states the circumstances when termination is unlawful. These include not giving staff the required notice, or payment instead of notice, and dismissing staff for discriminatory reasons.

It can be unlawful to terminate staff for:

  • temporary absence from work due to injury or illness
  • trade union membership, non-membership or taking part in union activities
  • making a complaint or taking part in proceedings against an employer
  • disability, race, age, sex, sexuality, pregnancy, marital status, family responsibilities, religion, political opinion or social origin
  • absence from work due to maternity leave or other parental leave
  • temporary absence from work for voluntary emergency work.
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