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Unfair dismissal and unlawful termination

If an employer fires a worker without a valid reason they may be breaking the law. Federal laws cover two types of dismissal, unfair dismissal and unlawful termination. Under the South Australian Equal Opportunity Act, termination because of discrimination is also illegal.

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 a number of circumstances where a termination is unlawful. These include not giving a worker the required notice or payment instead of notice, and when an employer fires a worker for discriminatory reasons.

It can be unlawful to be terminated 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 during maternity leave or other parental leave
  • temporary absence from work for voluntary emergency work.

If you think you have been unfairly dismissed or unlawfully terminated, you can make a claim to Fair Work Commission or the South Australian Industrial Relations Commission. See Fired unfairly? for more information. If you are successful, Fair Work Commission or the South Australian Industrial Relations Commission can order your employer to re-employ you or, if that is not appropriate, pay compensation.

If you think your dismissal was because of discrimination, contact us for advice.

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