Unlawful termination – what it is and how to prevent it

  • Unlawful termination - dismissal for old age

Hospitality businesses need to know the grounds for unlawful termination to minimise the chance of a former employee raising a dispute with the FWO or FWC.

Unlawful termination occurs when an employer dismisses an employee on certain grounds. We class them into three different groups: personal characteristics, excusable absence and union activity.

Personal characteristics

It’s unlawful to dismiss an employee on the basis of:

  • age;
  • sex, sexual preference;
  • race, colour, national extraction or social origin;
  • physical or mental disability;
  • marital status, family or carer’s responsibilities, pregnancy;
  • religion; or
  • political opinion.

There are some exceptions to these, such as where it’s based on the inherent requirements of the job.

Temporary absence

It’s unlawful to dismiss an employee because they were temporarily absent due to:

  • illness or injury;
  • engaging in voluntary emergency services; or
  • maternity leave or other parental leave.

Union activity

It’s unlawful to dismiss an employee on the basis of:

  • being a member of a trade union;
  • not being a member of a trade union;
  • participation in trade union activities outside working hours;
  • participation in trade union activities during working hours, where the employer has allowed participation during working hours;
  • seeking office as, or acting as, a representative of employees; or
  • filing a complaint, or participating in proceedings against an employer.

Consequences of unlawful termination

Within 21 days (and, in some circumstances, longer) of the dismissal taking effect, the sacked employee can make a compliant with the FWC. FWC can make orders including reinstating the employee and paying compensation.

Unlawful termination is also a breach if the Fair Work Act, which can lead to the business and its directors being fined.

Guides for compliance

Know the grounds for unlawful termination.

They’re listed above.

Make sure all managers and other decision makers know them as well.

Don’t discuss any of those matters with an employee

Or around employees. Ever. There’s a risk that discussions like this may create a perception

Certainly not around someone you’re considering sacking.

Don’t dismiss someone on the grounds listed above

That should be pretty obvious by now. They’re not valid reasons for dismissing an employee anyway.

Get legal advice

If you have an employee who arguably fits into one of the categories above and you’re considering dismissing them, get legal advice first. We’re here to help.




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