A common issue that arises in employment law is unlawful dismissal. Unlawful dismissal occurs when an employee is terminated under circumstances that have been expressly made unlawful. This includes termination based on discrimination on a prescribed ground or because the person has made a complaint against the employer. This page deals with unlawful dismissal in Australia.
Legislation
Claims of unlawful dismissal are made under the Fair Work Act 2009. These claims are made to the Fair Work Commission (FWC) by completing this form.
Unlawful dismissal vs unfair dismissal
It is important to note that unlawful dismissal is not the same as unfair dismissal. Unlawful dismissal occurs when an employee is terminated for reasons that are prohibited by law. Unfair dismissal occurs when an employee is terminated in a way that is harsh, unjust or unreasonable.
When is dismissal unlawful?
Under the Fair Work Act, termination of a person’s employment is unlawful if they are dismissed for any of the following reasons.
Illness or injury
Under section 352 of the Fair Work Act 2009, it is unlawful to terminate a person’s employment because they have been absent from work for up to three months because of illness or injury. It is also unlawful to terminate a person’s employment because of an aggregate absence from work of up to three months within a one-year period.
However, where a person’s illness or injury means they are no longer able to perform their duties, their employer may be able to justify terminating their employment.
Involvement with a trade union
Under sections 346 and 772 of the Fair Work Act 2009, it is unlawful to terminate a person’s employment because they are (or are not) a member of a trade union or because of their involvement in trade union activities.
A complaint made against the employer
Under section 772 of the Fair Work Act 2009, it is unlawful to terminate a person’s employment because they have made a complaint against the employer or participated in proceedings against the employer for alleged violations of law.
Parental leave status
Under section 772 of the Fair Work Act 2009, it is unlawful to terminate a person’s employment because they are absent from work while on maternity leave or other parental leave.
Emergency management activity
Under section 772 of the Fair Work Act 2009, it is also unlawful for an employer to terminate a person’s employment because of a temporary absence from work to organise a voluntary emergency management activity.
This includes dealing with emergencies and natural disasters where the employee is a member of an emergency management body and:
- the employee is asked to engage in the activity; or
- it would have been reasonable for such a request to have been made.
Discrimination on proscribed grounds
Under section 351 of the Fair Work Act 2009, it is unlawful to dismiss an employee because of their race, colour, sex, sexual preference, age, disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin.
Exceptions
It is not unlawful to take an action because of the inherent requirements of the position.
It is not unlawful for a religious institution to take an action in good faith and to avoid injury to the religious susceptibilities of adherents of that religion.
Process for deciding unlawful dismissal claims
An application to the FWC for unlawful dismissal must be made within 21 days of the date of dismissal. Upon receiving the application, the FWC must hold a conference to attempt to resolve the dispute. If the dispute is not resolved at this conference, it will issue a certificate to that effect.
The applicant may then make an application in the Federal Circuit and Family Court of Australia (FCFCA) or the Federal Court of Australia. The remedies these courts may deliver include reinstatement, compensation and civil penalties. There is no cap on the amount of compensation that can be ordered for unlawful dismissal.
Unlawful dismissal under state and territory law
If a person is employed by a local or state government department or agency, they are not covered by the national workplace system. However, they are eligible to make an unlawful dismissal application in their state or territory.
If a person is a contractor or was employed for a specified period and terminated at the conclusion of that period, they are not covered by unlawful dismissal laws.
If you require legal advice or representation in any legal matter, please contact Taylor Rose.
