Termination of employment is a complex process that occurs when an employee’s employment with an employer ends. An employee’s employment may be terminated by way of:
- dismissal;
- resignation; or
- redundancy.
The Fair Work Act 2009 (Cth) provides rules in order to understand the distinction between lawful and unlawful termination of employment. Further it provides rules on which entitlements an employee is owed at the end of their employment and what must be done when an employee is dismissed because of redundancy.
Both the Fair Work Ombudsman and the Fair Work Commission regulate Commonwealth workplace laws concerning employment termination.
What is The Fair Work Ombudsman responsible for?
- Informing employers and employees of their rights and obligations
- Ensuring compliance with workplace laws, and
- Potentially prosecuting employers who breach workplace legislation.
What does the Fair Work Commission deal with?
- Unfair dismissal
- Unlawful termination applications
- General protections dismissals.
Explanation of unfair dismissal
Unfair dismissal refers to an instance where an employee is dismissed from their job in a harsh, unjust or unreasonable manner. In order to understand whether a dismissal was in fact harsh, unjust or unreasonable, the Fair Work Commission consider the following factors:
- Whether there was a valid reason for the dismissal related to the employee’s capacity or conduct
- Whether the employee was notified of the reason for dismissal and was given the opportunity to respond
- Whether the employee has received previous warnings concerning unsatisfactory performance
- Whether the human resources management followed the correct dismissal procedures.
What is unlawful termination?
Unlawful termination refers to an instance where an employer terminates the employment of their employee for one of the following reasons:
- An individual’s race, colour, sex, sexual orientation, age, mental or physical disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin (some exceptions apply, such as where it’s based on the inherent requirements of the job)
- A temporary absence from work because of illness or injury
- A trade union membership or non-membership or participation in industrial activities
- Being absent from work during maternity leave or other parental leave
- A temporary absence from work to engage in a voluntary emergency management activity
- Exercising or planning to exercise a workplace right by making a complaint or inquiry in relation to your employment, or participating in proceedings against an employer.
So, what is the difference between unfair and unlawful dismissal?
There is a clear distinction between unfair and unlawful dismissal. Unfair dismissal usually occurs when there may be grounds to terminate an employee’s employment however, the employee was not notified correctly or the termination was not handled appropriately by Human Resources. Whereas, unlawful dismissal occurs where there are no grounds for dismissal and the employee is dismissed for an unlawful or discriminatory reason.
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