Unfair Dismissal, General Protections or Unlawful Termination?

An employer is only permitted to terminate an employee, at law, for valid reasons. There are three different categories of wrongful termination of employment: unfair dismissal, general protections dismissal, and unlawful termination. Each have very specific criteria that must be met to justify that form of wrongful termination has occurred. A wrongful termination may relate to only one of these three categories, or it may cross over to include more than one category.

Unfair dismissal is outlined under the Fair Work Act 2009 (Cth) at section 385 and section 387. Unfair dismissal is termination of employment that is harsh, unjust or unreasonable.

General protections dismissal is outlined under the Fair Work Act 2009 (Cth) at Division 3. General protections against wrongful termination under Division 3 must involve breach of the employee's workplace rights as defined under section 341 of the Fair Work Act 2009 (Cth), AND take adverse action against the employee as defined under section 342 of the Fair Work Act 2009 (Cth).

Unlawful termination is a termination of employment to which general protections do not apply. Unlawful termination is prohibited under section 772 of the Fair Work Act 2009 (Cth). Such prohibited reasons include:

1. temporary absence due to illness or injury

2. absence due to parental leave

3. filing a complaint against the employer,

4. Personal reasons such as race, colour, gender identity, age, physical or mental disability, marital status, family or carer’s responsibilities

If reasons for the employer's wrongful termination do not include reasons identified as general protections under the Fair Work Act 2009 (Cth) you may also pursue an application for unlawful termination.

Under section 732 of the Fair Work Act 2009 (Cth), you are not permitted to make an unlawful termination application if you are entitled to submit a general protections application.