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Dismissal

Employees are protected from discrimination at work during all stages of employment. This includes dismissal. It is against the law for you to be sacked or made redundant because of a personal characteristic protected under the Equal Opportunity Act 2010 such as age, disability, pregnancy or injury.

When is a dismissal against the law?

It is against the law to dismiss you or make you redundant because of your age, disability, pregnancy or any other characteristic protected under the Equal Opportunity Act.

You cannot be dismissed because of your age

One of the most common complaints about discrimination in dismissal is because of age.

You cannot be forced to retire because you have reached a certain age. It is also against the law for your employer or coworkers to make your working environment unbearable so that you are forced to retire.

Read more about age discrimination.

You cannot be dismissed because of an injury

It is against the law for you to be dismissed simply because you have an injury. If you are given a medical retirement or dismissal, it must comply with:

  • anti-discrimination laws
  • workers’ compensation legislation
  • the relevant award or enterprise agreement.

It is the responsibility of the employer to give an injured worker time to recover and to make reasonable adjustments so they can return to work.

Read more about disability discrimination.

You cannot be dismissed because you are pregnant or on parental leave

It is against the law for an organisation to restructure its roles to make a pregnant woman redundant.

After parental leave, under Australia’s National Employment Standards, an employee has the right to return to the position they held before going on leave, including any promotion granted while on parental leave. If that position no longer exists, the employee has the right to return to an available position for which they are qualified and suited, and is nearest in status and pay to their pre-parental leave position.

Visit the Fair Work Ombudsman website for more information or read more about pregnancy discrimination.

When is dismissal not against the law?

Your employer can legally dismiss you if:

  • your work performance is unsatisfactory
  • they have genuine financial and operational reasons.

Employers have responsibilities to follow before they dismiss someone because of poor performance or financial circumstances. These include:

  • documenting unsatisfactory work performance and discussing it with the employee, as well as discussing the steps they can take to address the issue.
  • where possible, trying to accommodate reasonable requests for workplace adjustments or flexible work 
  • have a clear written policy on disciplinary, warning and dismissal arrangements
  • ensuring that the policy is applied fairly and consistently to all staff members.

Can I be legally dismissed because of injury?

You can legally be given a medical retirement or dismissal but it must comply with:

  • anti-discrimination laws
  • workers’ compensation legislation
  • the relevant award or enterprise agreement.

Your employer must also have independent medical advice, which confirms that due to your injury you are no longer able to meet the requirements of the job, and:

  • no adjustments can reasonably be made to enable you to continue working, or
  • you pose an unacceptable risk to safety in the workplace.

Related resources

Download a Best Practice Guide on Managing Underperformance from the Fair Work Ombudsman.

Small business owners should check the requirements of the Small Business Fair Dismissal Code at the Fair Work Australia Website. 

Training and resources for employers

The Victorian Equal Opportunity and Human Rights Commission offers training for employers as well as a number of useful resources on discrimination and the law.

Related resources

Pregnancy and work: Know your rights and obligations – Jun 2017