Unlawful termination: the one that will really cost you

Federal employment laws cover two types of dismissal: unfair dismissal and unlawful termination.

While a dismissal can be both unfair and unlawful, unlawful termination is a different concept than unfair dismissal. Unfair dismissal is when an employee is dismissed from their job in a harsh, unjust or unreasonable manner. An unlawful termination is one that is effected for a reason that is expressly made unlawful.

Under Section 772 of the Fair Work Act, the Fair Work Ombudsman may consider an employee has been dismissed unlawfully when an employee is dismissed by their employer for one or more of the following reasons:

• a person’s race, colour, sex, sexual orientation, age, mental or physical disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin (some exceptions apply, such as where it’s based on the inherent requirements of the job)
• temporary absence from work because of illness or injury (within the meaning of the Fair Work Regulations 2009).
• trade union membership or non-membership or participation in industrial activities
• being absent from work during maternity leave or other parental leave
• temporary absence from work to engage in a voluntary emergency management activity
• exercising or planning to exercise a workplace right by making a complaint or inquiry in relation to their employment, or participating in proceedings against an employer.

Generally, employees are protected from unlawful termination under the General Protections provisions of the Fair Work Act 2009.

Navigating around unlawful termination can be a minefield for employers. There’s legal factors of General Protections, reverse onus of proof and, unlike compensation for unfair dismissal, the possibility of your former employee being awarded uncapped damages if you get it wrong.

Solution? Don’t get it wrong. Before you make the decision to dismiss an employee, why not give Bare Bones Consulting a call? We can help with all Human Resources and employment matters and can lay your options out in a simple way. Call us today or send us a message through our “Contact Us” page.