Unfair Dismissal & Unlawful Termination
An employer who decides to dismiss a worker must have a valid reason. An employer that dismisses staff without a valid reason could be breaking the law. Federal laws cover two types of dismissal: unfair dismissal and unlawful termination.
Valid reasons to dismiss an employee includes poor performance, serious misconduct or changes to the employer's operations.
- notify the worker of any unsatisfactory performance and give them a chance to improve
- have a fair and valid reason for dismissing a worker
- notify the worker of that reason and give them the opportunity to respond
- not fire a worker because of personal characteristics such as age, caring responsibilities, gender identity, intersex status, disability, race, marital or domestic partnership status, pregnancy, race, religious appearance or dress, sex, sexual orientation, or spouse or partner's identity
- give a period of notice according to the worker's award, agreement or contract.
What is Unfair Dismissal?
The Commonwealth Fair Work Act 2009 states that dismissal is unfair when it is harsh, unjust or unreasonable. This could refer to the reason for dismissal or the way it happened.
Some workers are not currently covered by unfair dismissal laws. They include employees who are:
- employed for less than six months
- contracted for a fixed term
- contracted for a specified season
- on probation for a reasonable set period
- casual workers engaged for a short period
- trainees at the completion of their training contract
- earning over $142,000 annually and not covered by an Award or Agreement (as at 1 July 2017- 30 June 2018)
- genuinely made redundant because of operational changes.
What is Unlawful Termination?
The Commonwealth Fair Work Act 2009 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, sexual orientation, 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.
Workers may be able to claim unlawful termination if they are not given the notice and redundancy pay due under their Award or Agreement.