Unlawful Termination

Author: Megan Adams, Progressive Legal

unlawful termination

Unlawful termination is a critical issue that affects employers and employees across Australia. Unfair termination happens when an employer dismisses an employee in violation of laws designed to protect employees’ rights.

Are you an employer who has been accused of unlawful termination?

Are you an employee who thinks you’ve been wrongfully terminated from your job?

This page sheds light on unlawful termination, providing you with an understanding of your rights, obligations, and legal options.

In this guide, we will cover the following key points:

  1. Defining unlawful termination;
  2. Remedies for unlawful termination;
  3. How unfair dismissal and general protections applications differ from unlawful termination applications;
  4. Proactive measures to adopt as an employer; and
  5. The benefits of seeking legal advice.

What is unlawful termination?

Unlawful termination occurs when an employee’s employment is terminated by their employer in a way that breaches relevant legislation.

Section 772 of The Fair Work Act 2009 (Cth) (the Act) governs unlawful termination in Australia, providing a framework to protect employees from unfair dismissals. The Act sets out provisions that outline the circumstances under which termination is unlawful, ensuring that employees are not subjected to discriminatory or unjust treatment.

  1. Employers cannot terminate an employee based on their protected attributes or for exercising their workplace rights.

An employer cannot terminate someone’s employment for prohibited reasons.  Prohibited reasons include:

  1. An employee’s temporary absence from work due to illness or injury;
  2. An employee’s membership (or lack of membership) in a trade union;
  3. Participation by an employee in trade union activities outside of business hours;
  4. Participation by an employee in trade union activities during business hours with the employer’s consent;
  5. An employee seeking office, acting or having acted as, a representative of employees;
  6. An employee filing a complaint or participating in legal proceedings against the employer;
  7. An employee’s race, colour, sex, sexual orientation, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin;
  8. An employee taking maternity or other parental leave; and
  9. An employee participating in voluntary emergency management activity and being away from work temporarily where the absence is reasonable in all the circumstances.

It’s important for both employees and employers to recognise these prohibited grounds to ensure compliance with the law and maintain a fair and inclusive work environment.

What remedies do you have for unlawful termination?

If you are an employee and believe you have been unlawfully terminated, you have many ways to seek redress.

It is important to speak to an experienced workplace lawyer if you are considering filing an unlawful termination application – while there are protections available for people who have been unlawfully terminated, the process for filing is technically challenging.  Unlawful termination applications will not be allowed if there are other grounds for another application regarding the termination (I.e., if the termination can be covered by General Protections or Unfair Dismissal Proceedings), and the application must be filed and served on the employer within 21 days of the termination taking effect.

The first step is to lodge a complaint with the Fair Work Commission, which is responsible for resolving workplace disputes. The Commission may attempt conciliation or mediation to reach a resolution.

If this fails, the matter may proceed to a formal hearing. Depending on the circumstances, employees may be eligible for remedies such as reinstatement and compensation.

Unfair Dismissal vs. Unlawful Termination – What’s the Difference?

Unfair dismissal and unlawful termination are distinct concepts that often get mixed up.

Unfair dismissal generally refers to terminations that breach the unfair dismissal provisions outlined in the Fair Work Act. These provisions apply to employees who have completed the minimum employment period and are not covered by specific exemptions. Find out more here.

On the other hand, unlawful termination refers specifically to dismissals that are for prohibited reasons and that are not covered by General Protections provisions.

Understanding this distinction is essential when assessing the legality of a termination and pursuing the appropriate course of action.

Unlawful Termination vs General Protections  – what’s the difference?

Unlawful Terminations and General Protections are two areas under the Fair Work Act with significant overlap.  Both involve employers taking action that involves prohibited reasons.

Interestingly, even people who are not national system employees can file applications in relation to their unlawful terminations.

If someone is a national system employee, they may also be able to file an application for unlawful termination if their employer terminates their employment for a prohibited reason that is not covered by General Protections Provisions (under section 341(1) of the Act).

What measures should you adopt as an employer?

To prevent unlawful termination claims, employers should adopt proactive measures that promote fairness and transparency in their employment practices.

This includes implementing fair and comprehensive employment policies that outline the expectations and responsibilities of both employers and employees.

Employers should provide equal opportunities for all employees, regardless of their protected attributes, and avoid making employment decisions based on discriminatory and prohibited grounds.

Regular workplace training on anti-discrimination and workplace rights can help create awareness and ensure compliance with the law.

If you are considering terminating an employee, be sure to consider the prohibited grounds listed above.  If a tribunal, arbitrator, or court finds that one of the prohibited reasons was a factor in your decision to terminate your employee’s employment, you can be found to have breached unlawful termination provisions.  This applies even if the prohibited reason was not the main reason for the termination.

What are the benefits of seeking legal advice?

Employees who believe they have been unlawfully terminated should consider seeking legal advice straight away. Unlawful termination applications are technical and can be time-consuming to prepare, and the Fair Work Commission has strict deadlines for filing these applications.

If you’re an employer considering terminating an employee, you should consider seeking legal advice – courts have found that if a prohibited reason is even part of an employer’s decision to terminate an employee’s employment, that may qualify for a finding of unlawful termination.

If you’re an employer who has been served with an unlawful termination application, speaking to an experienced employment lawyer can help you move more efficiently through the response and get a better outcome in the proceedings.

Experienced legal advice can give an employer peace of mind when the employer is going through a termination process.  It can also save you time and stress so that you can get back to running your business.

Employment law can be complex, and as experienced employment lawyers, we can provide valuable guidance, assess the merits of the case, and help determine the appropriate legal action to pursue.

If you are an employee, we will represent you in negotiations or proceedings, ensuring your rights are protected for fair outcomes.

Key Takeaways

Unlawful termination is a serious matter that can have significant implications for both employees and employers in Australia.

Understanding the laws surrounding unlawful termination is crucial to protect employees’ rights and promote fair workplaces. By familiarising themselves with the relevant legislation, employees can assert their rights, while employers can proactively implement measures to prevent unlawful terminations and create a positive and inclusive work environment.

If you are in need of help with regard to unlawful terminations, please reach out to our team on 1800 820 083 or enquire below.

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