Unlawful dismissal is where an employer terminates an employee’s employment for discriminatory reasons.
When is it unlawful dismissal?
Under the Fair Work Act 2009 (Cth), there are provisions that set out that it is illegal for an employer to terminate their employee’s employment in certain circumstances such as:
- Any temporary absence from work such as sick leave, carers leave, due to an injury or for a voluntary emergency management activity or military service.
- For being involved in a union and attending union events during or after working hours with the employer’s consent.
- Not having a membership with a union.
- For seeking a position or acting in a position where you a representative for other employees.
- Filing a complaint or commencing legal action against the employer.
- Discriminating against an employee due to their sex, gender, marriage status, due to having a physical or mental disability, pregnancy, political opinion and family responsibilities.
- Absence from work for maternity or parental leave.
When is it not unlawful?
The Fair Work Act 2009 (Cth) also contains provisions for when it is considered not unlawful to discriminate against a person in some certain circumstances such as:
- When there are certain requirements of the position and a person’s disability affects their ability to do the work required.
- When the disability of the employee requires special services or equipment provided by the employer to enable the employee to do their duties but the cost would cause undue hardship to the employer.
- When the requirements of the job require a person to be of a certain sex or race. For example, some industries create positions which are to be filled by indigenous applicants only.
- When the acts that are described as discriminatory are performed as set out in the legislation.
- When discriminatory acts are performed to promote the health and safety of the workplace.
How do you commence unlawful dismissal proceedings?
The employee has 60 days from the dismissal taking effect in which to submit an application to the Fair Work Commission claiming unlawful dismissal from their employer.
After the application is lodged, the Fair Work Commission will set up a private conference to deal with the application and will deal with it either by conciliation or by recommendation. However, if it remains unresolved, the Commission with issue the employee with a certificate.
The certificate must be lodged with the Court to initiate proceedings within 14 days of receiving it from the Commission.
If you feel that you have been unlawfully dismissed, contact an employment lawyer as soon as possible to protect your possible right to take action.