UNLAWFUL TERMINATION KNOWLEDGE BASE
Regardless of how you handle a termination, it is not possible to prevent a disgruntled ex-employee from lodging an unfair dismissal claim against you but it is important to remember certain prohibited reasons that can never be used as the basis for terminating a contract of employment.
Some examples of the sorts of reasons that an employee should not be terminated for are:
- Temporary absence from work because of illness or injury;
- Temporary absence from work for the purposes of engaging in voluntary emergency management activity;
- Union membership or participation in union activities;
- Non-membership of a trade union;
- Filing a complaint, or participating in proceedings, against the employer involving alleged violation of laws;
- Race, colour, sex, sexual preference, age, physical or mental disability, marital status, family and carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin; and
- Absence from work during maternity leave or other parental leave.
There is no minimum period of employment for making an adverse action claim in regard to unlawful termination. Similarly, casual employees as well as permanent employees are able to make a claim.
An unlawful termination application must be made within 21 calendar days after the termination takes effect, and may only proceed if there are exceptional circumstances.
The Fair Work Commission will assess whether the application is complete and valid before proceeding to a conference where the parties attempt to resolve the matters themselves with the help of a conciliator.
If those attempts to resolve the dispute have been unsuccessful, the matter will proceed to arbitration.
Reverse Onus of Proof
An unlawful termination claim attracts a reverse onus of proof.
This means that once an employee makes a claim that they were terminated for one or more unlawful reasons, the obligation will be on the employer to demonstrate that the termination was not for one of these reasons.
About Employment Innovations
Employment Innovations is one of Australia’s leading providers of employment services designed to increase productivity and ensure compliance. Its services and solutions include all the tools that every Australian small to medium sized employer needs – including workplace advice, legal services, payroll solutions, migration, human resource management and HR software.
The information provided in these knowledge base articles is general in nature and is not intended to substitute for professional advice. If you are unsure about how this information applies to your specific situation we recommend you contact Employment Innovations for advice.
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