Termination of employment can be one of the difficult realities of business and for employees. It may occur through voluntary resignation by the employee or dismissal by the employer, on the grounds of redundancy or for other reasons. There are a number of things to consider in going about terminating an employment relationship, for both employers and employees.

For Employees

If you are an employee and have been dismissed from your employment and you believe the circumstances surrounding your termination was unfair, or discriminatory, you may be able to take action against your employer to enforce your rights.

In some circumstances, employees may take action against an employer for certain unlawful activities (adverse actions) under the ‘General Protections’ provisions of the Fair Work Act 2009 (Cth), or for discriminatory conduct, harassment, or bullying. If those adverse actions lead to a dismissal, that dismissal could be considered in breach of the Fair Work Act.

For Employers

To avoid the risk of litigation for unfair dismissal, breach of general protections provisions and for unlawful termination, it is important that employers understand how to effectively manage and terminate employees, including ensuring any consultation or termination payment entitlements are provided.

DKL can provide advice on the process of managing terminations and ensuring that obligations both parties owe each other are upheld.

There are many ways in which an employment relationship can be brought to an end. There are also a number of claims an employee can make under the Fair Work Act against the employer if the employee believes their termination was unlawful.

What is a Redundancy?

Redundancy occurs when an employer no longer requires an employee’s job to be done by anyone. Subject to the length of service, type, and conditions of employment, employees may be entitled to redundancy pay.
If a redundancy is not genuine, an employee can make an unfair dismissal application, alleging that their dismissal was not because of a genuine redundancy and therefore was unfair.

Unfair Dismissal

Unfair dismissal is where the circumstances surrounding the dismissal make it harsh, unjust, or unreasonable, or not as a result of a genuine redundancy (where the employer no longer requires anyone to perform the role). For unfair dismissal to be found, particular requirements must first be met:
• Length of service;
• Not exceeding the High Income Threshold; and
• Lodging the claim within 21 days of the dismissal taking effect.
A ‘dismissal’ may also include situations where an employee felt compelled to resign due to certain conduct engaged in by the employer. This is known as a ‘constructive dismissal’.

General Protections

Employees may have grounds to make a claim under the ‘General Protections’ provisions of the Fair Work Act for unlawful activities (also known as ‘adverse action’), or for discriminatory conduct, harassment or bullying. If those adverse actions lead to a dismissal, that dismissal could be considered in breach of the Fair Work Act.

Each case must be individually assessed, though examples of general protections breaches could include where employer action is taken on the grounds of temporary absences related to illness or injury, making a complaint or inquiry to an employer, or discrimination based on race, religion, or gender.

Why choose DKL?

We treat all clients with respect and dignity, and understand that when confronting workplace issues, it is natural to feel vulnerable and confused. As an experienced team of employment law specialists, we have assisted many employees and employers to proactively manage issues within their workplaces and reach tailored and effective solutions.

If you have been dismissed from your workplace and believe the circumstances surrounding your termination were unlawful, DKL can assist, represent and provide you with support to navigate through what is a very difficult time for all employees.

DKL can provide employers with advice to help understand its obligations, assist in organisational restructures and redundancies, write appropriate and effective policies, and help comply with policies to avoid risk.

Call us on +61 (2) 9233 5669, email hello@dannykinglegal.com, or submit a webform to speak to one of our onboarding team about how we can help you.