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Unlawful termination

An employer must not terminate an employee for a discriminatory reason or without providing adequate notice.

The unlawful termination provisions are part of the federal Fair Work Act 2009 (FW Act).  These provisions apply to all employees in the Western Australian State industrial relations system, with some exclusions.

An employee may make an unlawful termination claim if they:

  • were terminated without proper notice; or
  • believe their termination was based on one or more of the prohibited reasons concerning alleged discrimination.

Proper notice requirements

Permanent employees are entitled to notice of dismissal, or payment in lieu of notice.  This payment must equal the total amount the employee would receive if they had worked the required notice period. 

The minimum periods of notice in the FW Act are:

Employees' continuous service Notice period
Not more than one year  One week
More than one year but not more than three years Two weeks
More than three years but not more than five years Three weeks
More than five years Four weeks

For employees over 45 years of age with two completed years’ continuous service, the notice period is extended by one week.  It is important to note that if an award, a contract of employment or an agreement contains a greater notice period the longer period will apply.

Prohibited reasons for dismissal

The FW Act provides that a dismissal is unlawful if done for any of the following reasons:

  1. membership of a union or participation in union activities outside working hours or, with the employer’s consent, during work hours;
  2. non membership of a union;
  3. acting or having acted as a representative for employees;
  4. filing a complaint or taking part in proceedings against an employer for alleged violation of laws or regulations or having recourse to competent administrative authorities;
  5. race, colour, gender, sexual preference, age, physical or mental disability, marital status, family responsibilities, pregnancy, religion, political opinion, national extraction or social origin;
  6. temporary absence from work because of illness or injury;
  7. absence from work during maternity leave or other parental leave; or
  8. temporary absence from work for voluntary emergency management activity.

Protection against unlawful termination relating to termination based on a prohibited reason apply to all employees.

In addition: if employers propose to terminate 15 or more employees for reasons of economic, technological or structural change, they are obligated to inform Centrelink.  It is considered an unlawful termination to make employees redundant in these circumstances without providing the proper notice to Centrelink. 

Exclusions

Certain types of employees are excluded from making a claim of unlawful termination based on failure to provide proper notice.  These are:

  1. employees engaged under a contract of employment for a specified period of time or a specified task;
  2. trainees employed under traineeship agreements or approved traineeships for a specified period;
  3. casual employees;
  4. seasonal employees;
  5. daily hire employees in the construction and meat industries;
  6. weekly hire employees in the meat industry terminated on seasonal factors, and
  7. employees guilty of serious misconduct.

Further information

A claim of unlawful termination is made to the Fair Work Ombudsman.

For further information on unlawful termination call Wageline on 1300 655 266.