Unlawful termination and unfair dismissal both describe a scenario whereby an employee of a business has reasonable cause to challenge the basis for being fired or “let go”, either on an ethical or legal basis. For an employee whose employment has been terminated, it is difficult without legal advice to know which of these legal doctrines will apply. The legal application can often be misunderstood and deserves some clarification.

The most appropriate legal practitioner to explain these two terms is an employment lawyer, since both relate to the area of employment law. To gain a more legally comprehensive understanding of the application of these terms, we should look at the relevant provisions of the Fair Work Act 2009 (‘the Act’).

What does the Act say about ‘unfair dismissal’?

Located in part 3-2 of the Act, the unfair dismissal provisions attempt to formulate a guided framework that is fair on both parties – employer and employee. The procedures set out in the Act for commencing a claim for unfair dismissal against an employer are typically carried out quickly, flexibly and informally. Their purpose is to give each party “a fair go”.[1]

  • What does ‘unfair dismissal’ mean?

Section 385 of the Act looks at the circumstances of the dismissal to determine whether or not it was unfair. The Courts may take into account any of the following factors relating to the conduct of the employer when deciding on a claim for “unfair dismissal”:

o   The harshness, unfairness or unreasonableness of the dismissal;

o   Whether or not the decision to dismiss was consistent with the regulations under the Small Business Fair Dismissal Code; and

o   Whether or not the dismissal was based on actual redundancy.

  • How to prevent being unfairly dismissed

Apart from independent contractors, employees who have worked a minimum of 6 months have entitlements to challenge a dismissal that they believe to be unfair. If the employee was working in a small business, however, the minimum will be one year.

In addition, for an employee to challenge a dismissal they must satisfy one of the following requirements under section 382(b) of the Act, including:

o   Being employed under an applicable enterprise agreement;

o   Being covered by an award; or

o   The employee earns less than the high-income threshold under the Fair Work Regulations 2009. 

What does the Act say about ‘unlawful termination’?

There is a common misconception surrounding the terms ‘unfair dismissal’ and ‘unlawful termination’, being that they share the same meaning. In fact, the Act deals with these concepts separately. Unlawful termination is dealt with under provision 6-4 of the Act.

How can employees protect themselves?

Under provision 3-1 of the Act, employees are entitled to certain remedies in the event that they are terminated unlawfully. This might be based on discrimination or other unlawful grounds.

In addition, and under section 340 (Protections), a person is not allowed to take ‘adverse action’ against another person if the person:

  • Has a workplace right; or
  • Has, or has not, exercised a workplace right; or
  • Proposes, or proposes not to, or has at any time proposed or proposed not to, exercise a right; or
  • Prevented another person from exercising a workplace right.

Conclusion

If you believe you have been unfairly dismissed or unlawfully terminated, and wish to discuss the matter in more detail with an employment lawyer, contact LegalVision on 1300 544 755 and we can certainly assist.

Our team of employment lawyers are experienced in the areas of unfair dismissal and unlawful termination, and will help resolve your matter in a timely and professional manner.

[1] Sheldon J in Re Loty and Holloway v Australian Workers’ Union [1971] AR (NSW) 95.

 

COVID-19 Business Survey
LegalVision is conducting a survey on the impact of COVID-19 for businesses across Australia. The survey takes 2 minutes to complete and all responses are anonymous. We would appreciate your input. Take the survey now.

About LegalVision: LegalVision is a tech-driven, full-service commercial law firm that uses technology to deliver a faster, better quality and more cost-effective client experience.

The majority of our clients are LVConnect members. By becoming a member, you can stay ahead of legal issues while staying on top of costs. For just $199 per month, membership unlocks unlimited lawyer consultations, faster turnaround times, free legal templates and members-only discounts.

Learn more about LVConnect

Emma Jervis
Need Legal Help? Get a Free Fixed-Fee Quote

If you would like to receive a free fixed-fee quote or get in touch with our team, fill out the form below.

  • By submitting this form, you agree to receive emails from LegalVision and can unsubscribe at any time. See our full Privacy Policy.
  • This field is for validation purposes and should be left unchanged.
Our Awards
  • 2019 Top 25 Startups - LinkedIn 2019 Top 25 Startups - LinkedIn
  • 2019 NewLaw Firm of the Year - Australian Law Awards 2019 NewLaw Firm of the Year - Australian Law Awards
  • 2020 Fastest Growing Law Firm - Financial Times APAC 500 2020 Fastest Growing Law Firm - Financial Times APAC 500
  • 2020 AFR Fast 100 List - Australian Financial Review 2020 AFR Fast 100 List - Australian Financial Review
  • 2020 Law Firm of the Year Finalist - Australasian Law Awards 2020 Law Firm of the Year Finalist - Australasian Law Awards
  • Most Innovative Law Firm - 2019 Australasian Lawyer 2019 Most Innovative Firm - Australasian Lawyer
Privacy Policy Snapshot

We collect and store information about you. Let us explain why we do this.

What information do you collect?

We collect a range of data about you, including your contact details, legal issues and data on how you use our website.

How do you collect information?

We collect information over the phone, by email and through our website.

What do you do with this information?

We store and use your information to deliver you better legal services. This mostly involves communicating with you, marketing to you and occasionally sharing your information with our partners.

How do I contact you?

You can always see what data you’ve stored with us.

Questions, comments or complaints? Reach out on 1300 544 755 or email us at info@legalvision.com.au

View Privacy Policy