Examples Of Common Unlawful Dismissal Scenarios

We examine examples of different circumstances where an employee will likely be successful in a dismissal claim against the company. However, there are many more examples than we could possibly list here.

In this page, we have covered some common (but not all) scenarios which we see time and time again. These scenarios can justify lodging an unfair dismissal, general protections or unlawful termination claim.

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Terminated because employee exercised a workplace right

It is unlawful to terminate an employee because they have, or intend to, exercise a workplace right. This would be a breach of the general protections provisions of the Fair Work Act 2009.

Workplace rights include an employee having a benefit or a responsibility under a workplace law, being able to initiate or participate in proceedings under a workplace law, or being able to make a complaint or inquiry in relation to an employee's employment. There is no limit on what can constitute a workplace right.

Examples of unlawful termination

Here are some examples of situations where it would be unlawful to terminate an employee:

If the employee makes a complaint, about anything connected with their employment. For example, a complaint about bullying, being overworked, the work the employee is required to perform, unsafe work conditions, treatment received from supervisors, the way work is performed by the company, or payments received for work performed;

If the employee inquires about anything to do with their employment. There is no limit as to what the employee can inquire about, provided there is a connection to their employment. For example, the employee can inquire about their pay, benefits under an award, recent superannuation payments, information about making a possible complaint about a staff member, tax withheld from pay, the manner in which work is being performed by the business, or a safety issue;

The employee takes the benefit of any lawful entitlement. For example, this can include taking sick leave, annual leave, long service leave, maternity leave, demanding allowances or payments due under an award, taking compassionate leave, taking community service leave or refusing to work unreasonable overtime;

Filing or intending to file a workers' compensation claim;

Filing or intending to file a bullying complaint with the Fair Work Commission;

Making or intending to make a complaint to the Australian Taxation Office about unpaid super, incorrect super pay, or incorrect tax deductions;

Making or intending to make a complaint to the Fair Work Ombudsman or other body about underpayment, incorrect payment or breaches of employee entitlements;

Making or intending to make a complaint to WorkSafe or other relevant body about a safety issue; or

Being a member of or intending to join a union.

It is important to remember that the above is not an exhaustive list.

Further, an employee must not be terminated for any of the above reasons, no matter how long they have been with the employer (so, for example, it would still be unlawful if the employee was terminated for any of the above reasons while they were on probation).

Sham Redundancy

We see a lot of situations where the employee is terminated for an alleged "redundancy", but after some investigation, it appears that the redundancy was not genuine.

A redundancy is not genuine if any one of the following are present:

The job that the employee was doing is still required to be performed by someone;

The employee could have been offered work elsewhere within the organisation (including any associated entities of the employer); or

If the employee is covered by modern award or an enterprise bargaining agreement, the employer failed to properly consult with the employee before making a decision to make their position redundant. Consultation usually includes discussing the redundancy with the employee, giving the employee an opportunity to have their say about their proposed redundancy, and putting the important information in writing.

If the employee was terminated because of a redundancy, and any one of the above applies, then the employee is likely be entitled to lodge an unfair dismissal claim.

There are some requirements before an employee is entitled to lodge an unfair dismissal claim see Unfair Dismissal for more information.

Terminated Due to Discrimination

It is unlawful to terminate an employee for any discrimination grounds, which include the employee's race, colour, sex, sexual orientation, age, physical or mental disability, marital status, family or carer's responsibilities, pregnancy, religion, political opinion, nationality or social origin.

Terminated for Poor Performance

Under the unfair dismissal laws, an employee must be given a reasonable opportunity to improve before they are dismissed for poor performance. If the employee is dismissed for poor performance reasons, then the employee will be able to lodge an unfair dismissal claim (provided they are covered by the unfair dismissal laws) in the following circumstances:

The employee did not receive proper training;

The employer did not explain to the employee how the employee's performance is lacking;

The employer did not give the employee reasonable time to improve their performance;

The alleged performance breaches were not caused by the employee;

The employee was not warned that termination of their employment was a possibility if performance was not improved; or

There is another good reason to explain why the employee did not perform according to expectations.

Read our page Performance Issues for more information.

Terminated for no reason

An employee who is protected from unfair dismissal can lodge an unfair dismissal claim if their employment was terminated for no reason whatsoever.

Terminated without due process

An employee who is protected from unfair dismissal can lodge an unfair dismissal claim if their employment was terminated without the employer following the proper process.

Terminated for misconduct the employee did not commit

An employee who is protected from unfair dismissal can lodge an unfair dismissal claim if the employee is accused of doing something wrong (known as misconduct), and the employee did not do what the employer accused them of.

Constructive dismissal/forced resignation

Generally, if an employee resigns from employment, they cannot bring an unfair dismissal, general protections, or lawful termination claim.

However, the exception to the above is if an employee is forced to resign. A forced resignation is known as a constructive dismissal. If the employee has been forced to resign, then the law will treat the employee as having their employment terminated. The employee can then lodge an unfair dismissal, general protections, or unlawful termination claim.

An example of constructive dismissal would be if the employer asked for the employee’s resignation.

Reason does not justify dismissal

An employee who is protected from unfair dismissal can lodge an unfair dismissal claim if the reason relied on by the employer to terminate employment is not serious enough to justify dismissal.

Contact us for a free discussion

If you have been dismissed, contact us for a free discussion to determine whether you can lodge a claim.