How do I know if my termination was lawful?

Whether a termination of employment is lawful or unlawful is determined by having regard to both the ‘common law’ and ‘legislation’.

Common Law

Employment is effectively a contractual relationship. Henceforth, subject to any rights and obligations arising from federal or state legislation, the ‘common law’ rules and principles that govern contractual relations will apply to termination of employment contracts.

Normally, the employer has a contractual right to terminate the employment in either of two ways:

  1. notice of termination in accordance with the employment contract, or
  2. summary dismissal (i.e. immediate dismissal on serious grounds such as theft, assault, serious breach of contract etc.)

In common law, provided the employer has followed its obligations expressed in the employment contract and any award or enterprise agreement that is applicable, such termination will be lawful.

Termination will be unlawful if sufficient notice is not provided or, for summary dismissal, no adequate legal reason exists.

In common law, the employer generally does not need to give a reason for dismissal (subject to the contractual requirements if any) or offer procedural fairness during the termination process. State and federal legislation has however forced these obligations on employers as discussed below.

Federal and State Legislation

As a result of the enactment of both state and federal legislation, termination of an employment contract can be deemed unlawful in certain circumstances, allowing employees to challenge the termination by seeking remedies from their employer in the nature of reinstatement, monetary compensation, or other remedies, and in some cases seeking penalties against the employer.

Specifically for non-state government employees – who are covered by the Fair Work Act 2009 (the Act) – termination of their employment can be considered unlawful under the following categories:

  1. Unfair Dismissal – termination was ‘harsh’, ‘unjust’ or ‘unreasonable’;
  2. General Protections – termination due to employee exercising a ‘workplace right’; and
  3. Unlawful Termination – termination that is in breach of ‘specific protections’ afforded to employees under the Act.

In determining whether a termination is unlawful the first step is to identify the reason or reasons for termination. This may be communicated orally or in writing by the employer. The reason(s) will determine the cause of action and remedy available, if any.

Under section 772 of the Fair Work Act 2009 (Cth) [the Act], an employer is prohibited from terminating an employee for one or more of the following reasons:

  • temporary absence from work due to illness or injury;
  • trade union membership or participation in trade union activities outside of working hours;
  • non-membership of a trade union;
  • seeking office as, or acting in the capacity of, a representative of employees;
  • the filing of a complaint or the participation in proceedings against an employer involving alleged violation of laws or regulations or recourse to competent administrative authorities;
  • race, colour, sex, sexual preference, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin;
  • absence from work during maternity leave or other parental leave; or
  • temporary absence from work for the purpose of engaging in a voluntary emergency management activity, where the absence is reasonable having regard to all the circumstances.

Poor performance

Where the employee has a history of poor performance and fails to improve to the required standard, the employer may have grounds to undertake disciplinary action such as a warning or dismissal. The employment contract, award or workplace policy may outline the disciplinary outcomes and appeal procedures. Termination for reasons of poor performance can be lawful if the correct procedure is followed.

Serious Misconduct (Summary Dismissal)

A serious one-off act of misconduct by the employee may entitle the employer the right to terminate instantly. Some examples include assaulting a colleague; swearing at your supervisor; disclosing or misusing confidential information; sexual harassment; theft; fraud; and wilful disobedience of a lawful and reasonable direction.


Redundancy is a situation where an employer no longer wants o requires to have a particular job performed by any employee. Common grounds for redundancy include business slow down and business restructure. Terminating an employee on the basis of redundancy can be lawful provided the redundancy is genuine and the requirements of any contract and legislation have been followed.


There are various reasons to terminate an employee, and it is important to check whether any of the reasons fall foul of the contract, the award, any enterprise agreement and any applicable state or federal legislation. To accurately determine whether your termination is lawful, Brydens Lawyers can assist. To review your particular circumstances, do not hesitate to contact Brydens Lawyers as strict time limits apply with respect to the prosecution of an unlawful termination matter. Contact Brydens Lawyers without delay on 1800 848 848 or at brydens.com.au. At Brydens Lawyers-#WEDO unlawful termination and wrongful dismissal matters.