Unfair Dismissal – Here’s How the Law Works to Protect You

by WRA

What is unlawful dismissal?

Unlawful dismissal is the removal of an employee for any reason that is expressly unlawful. Whether you’re an Australian citizen, contract worker, or a foreign employee, you need to understand unlawful dismissal, your protections against it, and how it may affect a legal claim against an employer or organization.

An unlawful dismissal is essentially the same thing as an unlawful job termination, wrongful dismissal, or wrongful termination. In short, an unlawful dismissal occurs when an employee is terminated or otherwise prevented from working their job for wrong or illegal reasons.

Employees do have some protections against the unlawful termination of employment. Unlawful job termination is expressly forbidden in legislation like the Fair Work Act of 2009. Furthermore, the Fair Work Act and related legislation outline various incidents and circumstances in which terminating an employee would be unlawful no matter what.

If you or a loved one have been unlawfully dismissed from work or are facing an unlawful termination of your contract, read on. We’ll break down more information about unlawful dismissal and who to contact for legal representation.

What’s the difference between unlawful dismissal, unlawful termination, and unfair dismissal?

While unlawful dismissal, unfair dismissal, and unlawful termination are similar, they are not precisely the same things.

An unfair dismissal is when an employee has been dismissed, by their employer and the action from the employer was:

  • Harsh, unreasonable, and/or unjust
  • Not consistent with the Small Business Fair Dismissal Code
  • Not a case of genuine redundancy

Meanwhile, unlawful termination is more serious, so it is dealt with separately in many legal cases. Unlawful termination occurs when an employer unlawfully or wrongfully terminates one or more employees. The same rules for unlawful dismissal apply to unlawful termination in most cases,

Unlawful and unfair dismissal are different from each other because unfair dismissal may involve the employer making a mistake or acting without knowing the full facts. In such cases – reinstatement of the employee is an expected outcome.  However, in unlawful termination cases, the employer is usually shown to be deliberately in breach of the Fair Work Act or other legislation. In these cases, fines known as ‘civil penalties’ may apply and can be awarded by the Court to the employee.

In each of these cases, employees can apply for three protection options as covered in the Fair Work Act. Note that employees can only apply for one of the three potential options: unfair dismissal, unlawful termination, or general protection dismissal.

Therefore, it is critical for workers to consider which of these types of dismissal apply to their circumstances before filing a claim.

Unlawfully dismissed from work in different situations

Unlawfully dismissed from work in different situations

Depending on the circumstances of your job, you may face an unlawful dismissal from work in different situations.

Some of the most common examples of unlawful reasons for dismissal include:

  • Unlawful termination for pregnancy. For instance, you become pregnant and you are terminated by your employer since they perceive you to be less capable of work
  • Unlawful termination during a probation period, such as during the initial training time for a new job
  • Unlawful dismissal because you made a complaint against your employer
  • Unlawful dismissal because you participated in a trade union outside working hours or during working hours with your employer’s consent
  • Unlawful termination because you applied for an absence or parental leave
  • Unlawful dismissal because you refused to negotiate, make, or sign a certified/enterprise agreement

All of these situations and more carry a common theme: an employee is dismissed by their employer for protected reasons. In these situations, dismissed employees may qualify for compensation and have grounds for legal action.

Unlawful dismissal rules in Australia

Unlawful dismissal Fair Work Act

Australia’s government has enacted a variety of unlawful dismissal rules, which protect employees and which provide frameworks for employers. Such arrangements set down guidelines for employers and employees alike.

According to the Fair Work unlawful termination laws, different groups of employees are protected from unlawful dismissal depending on their employment status and other factors.

According to unlawful termination laws in the Fair Work Act, employees are protected from unfair dismissal and may make a claim in the Fair Work Commission if:

  • They worked for six months in a large business or 12 months in a small business
  • They lost their job
  • They don’t earn more than the high-income threshold (CPI indexed every year), currently set at just over $153,000.00

Alternatively, employees may apply for general protection dismissal benefits if they were dismissed for a prohibited reason under the Fair Work Act. These include employees who were dismissed due to discrimination, sham contracting, workplace rights violations, a temporary absence due to an injury or illness, or exercising their freedom of association.

Lastly, employees are protected from unlawful termination and may receive benefits if they are:

  • State government employees in South Australia, New South Wales, Queensland, Tasmania, and Western Australia
  • Local government employees in Queensland, South Australia, and New South Wales
  • Employed in Western Australia by non-constitutional corporations, such as the employees of sole traders, trusts, and partnerships

Note that employees cannot apply for unlawful termination if they are eligible to apply for general protections dismissal or unfair dismissal.

Adverse action

Whether you are an Australian citizen or a foreign employee, you need to understand how adverse action laws affect your benefits and employment protections. Let’s break down adverse action Fair Work Commission rules.

Adverse action Fair Work Act

Under the Fair Work Act, adverse action is any unlawful and/or discriminatory action taken by an employer against an employee only because the employee exercised one of their workplace rights. For instance, if an employee exercises their right to join a union and they are dismissed as a result, they are the victim of an adverse action.

Fair work adverse action definitions cover all potential violations of employee rights, including the right to request leave, the right to unionize, the right to fair pay, etc.

Adverse action example

Adverse action can include both reactions to employee actions or pre-emptive actions on the part of prospective employers.

For example, a prospective employer is guilty of taking adverse action against a potential employee if they threaten to refuse to employ that person or if they discriminate against the potential employee.

There have been several cases demonstrating adverse action on the part of employers. For instance, in Australian Rail, Tram and Bus Industry Union v. Australian Western Railroad Pty Ltd [2017], the employer was found guilty of committing adverse action because they canceled scheduled training activities due to a perceived lack of commitment and poor attitude toward the part of employees.

In another example, Keenan v. Cummins South Pacific Pty Ltd [2018], a senior manager was terminated because they made workplace complaints to management about an HR manager, who was supervised by the senior manager. The manager was then reinstated and given back pay totaling $1.1 million.

Unlawful dismissal examples

Want to learn more about whether you have been a victim of an unlawful dismissal? Let’s take a look at some wrongful termination examples and wrongful dismissal examples.

Say that you were injured at work and filed a worker’s compensation claim. If your employer discovered this and then decided to fire you because of it, you would have been the subject of an unlawful dismissal or unlawful termination.

For another example, say that you decide to take sick leave or maternity leave. If your employer doesn’t like this and decides to dismiss you early, such as by preventing you from working during the week prior to your leave-taking effect, you’re the subject of an unlawful dismissal.

Unlawful dismissal claim

If you’ve been the subject of an unlawful dismissal, you can file an unlawful dismissal claim. However, you must keep certain time limits and other details in mind.

To file an unlawful dismissal claim to the Fair Work Commission or FWC, you must submit your application within 21 days of the incident occurring. While the FWC can extend this deadline if there are exceptional circumstances, it’s best not to rely on this.

The FWC will hold a conference to deal with your unlawful termination suit or claim if accepted. If a settlement can’t be reached, it will issue a certificate and you can agree to formal arbitration as mandated by the FWC. Depending on the circumstances of your employment law claim, the FWC might order resolutions such as:

  • Reinstatement in your formal position
  • Continuity, which treats the situation as though the dismissal did not occur
  • That you are paid wages or entitlements lost because of the dismissal
  • That you receive compensation for the dismissal

Of course, the FWC can also dismiss your claim. 

Because the situation can be complex, and because multiple outcomes are possible, it’s best to seek professional help and advice early.  You will need to find someone who can explain unlawful dismissal rules and due process laws. Knowledgeable and experienced employment lawyers are the best professionals to assist in these regards.

How to look for an unlawful dismissal lawyer

An unlawful dismissal lawyer is a legal expert regarding workplace laws, workers’ rights, and worker’s compensation cases. The right unlawful dismissal lawyer can significantly improve your chances of succeeding with an unlawful dismissal claim or related legal process.

How do you find a skilled and experienced employment lawyer best suited to your needs?  That’s where Work Rights Australia comes in.  We are one of the nation’s leading employee advocacy and support services. We have a panel of knowledgeable and experienced HR, IR and legal professionals who are well-equipped and ready to assist with your unlawful termination, unlawful dismissal, or other workers’ rights claim.

There’s no need to wait. Contact us today by filling out the online intake form, and one of our friendly client support team members will respond immediately.

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