What is the definition of unfair dismissal and unlawful termination?

by The FindLaw Team

Unfair dismissal and unlawful termination are the type of terms that seem pretty self-explanatory, and although most of us have a general understanding of what the two phrases means, however, when it comes to the application of the concepts in a legal setting, that is of course another thing altogether. One of the things that most of us struggle with when analysing a legal term, is trying to understand the definition of a particular expression and in this case, the terms unfair dismissal and unlawful termination will be our focus.

So what does unfair dismissal and unlawful termination mean under the Fair Work Act 2009 (the FWA)? Well, read on and you shall find out.

The unfair dismissal provisions

The unfair dismissal provisions can be found in Part 3-2 of the FWA and the object of the Part is to establish a framework that deals with the concept of unfair dismissal that is reasonable for both the employer and employee. Furthermore, the unfair dismissal provisions also takes into account the needs of small businesses, and that when unfair dismissal procedures are undertaken, it is quick, flexible and informal.

Essentially, the primary objective of the unfair dismissal provisions is to ensure that there is a “fair go all round” as stated by Sheldon J in Re Loty and Holloway v Australian Workers' Union [1971] AR (NSW) 95.

What is the definition of unfair dismissal?

Under s 385, an employee is considered to be unfairly dismissed if Fair Work Australia is satisfied that he or she has been dismissed, and the action by an employer was:


How is an employee protected from unfair dismissal?

An employee (excluding parties such as independent contractors) can make a claim against an action of unfair dismissal if they have worked at least the minimum employment period – which means six months for an employee, or if an employee was part of a small business, then the minimum period is a year.

Furthermore, an employee must also meet at least one of the following criteria, under s 382(b) of the FWA:

  • the employee is covered by a modern award;
  • the employee is part of an applicable enterprise agreement;
  • the employee’s annual rate of earnings is less than the high income threshold which is determined in accordance with reg 3.05 of the Fair Work Regulations 2009.


Unlawful termination

It’s natural that many people may make the mistake that unfair dismissal and unlawful termination means the same thing, however, unlawful termination is dealt with separately from unfair dismissal, with the provisions mainly found in Part 6-4 of the FWA.

The overarching objective of the unlawful termination provisions is to give effect to the international obligations that Australia owes to instruments such as the International Labour Organization Convention No 158 on Termination of Employment at the Initiative of the Employer, for example.

Adverse action protections

Additionally, Part 3-1 of the FWA grants employees the option of seeking a remedy if they have been terminated on unlawful or discriminatory grounds, and under the s 340 protections, a person must not take adverse action against another person because they have:

  • 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.

We should also note that under s 340(2), a person must not take adverse action against a third person who has exercised, or proposes to exercise a workplace right, either for the benefit of the second person, or for a specific class of person.

This is article is only a general piece regarding unfair dismissal and unlawful termination. If you do have any concerns regarding your employment, it’s always a good idea to seek the help of a lawyer who can assist you in understanding your rights, and who can also advise you on the appropriate course of action to take.


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