Fair Work; unfair, wrongful and unlawful dismissal Part 2

Yesterday I posted a blog about the prevalence of the colloquial use of the notions of unfair, wrongful and unlawful dismissal. The expressions are often used interchangeably, but in truth they describe quite distinct concepts and I wrote briefly about the first two.

Unlawful dismissal is a more complicated issue than unfair or wrongful dismissal. An unlawful dismissal includes the termination of employment of an employee in circumstances which are prohibited by the law.

Under the Fair Work Act this may occur in a number of circumstances.

The following applies to national system employers and employees of them.

As unlawful adverse action

I have endeavoured to simplify some detailed statutory provisions into the following propositions.

It is unlawful under the Fair Work Act for a person  (which by definition includes a company or other form of legal entity) to take adverse action against another person because

(a) the second person (or even a third person) has or proposes to exercise a workplace right or to prevent the exercise of a workplace right (see secs 340 and 343, Fair Work Act); or

(b)  the second person engages in specified industrial activity (see secs 346 and 347).

If the second person is dismissed for the above prohibited reasons, the dismissal would be unlawful, irrespective  whether the first person is an employer or someone else.

There are also specific provisions of the Fair Work Act directed at employers which render dismissals unlawful; see for example secs 344, 351 and 352.

It is unlawful under sec 351 for an employer to take adverse action against an employee (including dismissing an employee) because of the person’s race, colour, sex, sexual orientation, age, physical or mental disability, marital status, family r carer’s responsibilities, pregnancy, religion political opinion, national extraction or social origin.

Finally, sec 352 of the Act provides that it is unlawful for an employer to dismiss an employee because the employee is temporarily absent from work due to illness or accident.

Thus a dismissal because of any of these grounds would also constitute an unlawful dismissal and technically the employer and its staff can be exposed to civil penalties (or fines essentially) for doing so.

There are some other unlawful remedies for unlawful dismissal, which I will expand upon in a future blog.