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Does my dismissal count as discrimination?

For a dismissal to be fair, the dismissal must be for a valid reason related to your "capacity", or your "conduct."

Generally, your former employer will provide an overt reason for your dismissal, such as redundancy, misconduct, or poor performance. However, it’s possible that you believe the real reason was something else. You may think the reason was related to one or more of these characteristics, in which case there may be additional grounds for you to pursue your former employer:

  • Union activity
  • Lawful entitlements
  • Ethnic origin
  • Gender
  • Pregnancy/breastfeeding
  • Carer or parent responsibilities
  • Sexual harassment
  • Physical mental illness, disability, injury, medical condition
  • Sexual preference-related issues: including your sexual preference, your marital status, your gender identity, your intersex status,
  • Age
  • Religion
  • Politics
  • Appearance

These are generally not valid reasons relating to capacity or conduct, and if proved, will generally be unfair.

However, it can sometimes be difficult to prove that the discriminatory reason was the motivation for the dismissal. Sometimes, employers use another reason instead of "discrimination" as an excuse. This can make winning a case based on discrimination more difficult.

Sometimes, an employer will dismiss an employee with a long term illness, injury or disability which is affecting their ability to do their job. Even though this might appear discriminatory, if the employee genuinely cannot do the job they were employed to do any more, it might still be considered fair. In this case, the requirements of the job, and the capacity and future prognosis of the employee are key issues.

If you think your dismissal was for discriminatory reasons, there may be other legal avenues which are better suited to your circumstances. There are federal and state anti-discrimination laws which may give you a better chance at winning your case, or getting properly compensated. There are also 'general protections' provisions in the Fair Work Act which would allow you to make a claim about some of these things.

Our Online Unfair Dismissal Lawyers Service will ask a series of questions that can help determine whether there were discriminatory factors that led to your dismissal. When you speak to a Slater and Gordon legal professional as part of the Online Unfair Dismissal Lawyer Service those issues can be discussed in more detail.

However, if you decide not to proceed with using the the Online Unfair Dismissal Lawyers service, but you want to see whether some of the other legal avenues are suitable for you, please call Slater and Gordon on 1800 555 777.

Remember that a consultation with a legal professional at Slater and Gordon generally won't be free; the consultant you speak to at Slater and Gordon will be able to explain costs to you.

Online Unfair Dismissal Tool

Use our online tool to determine if you are eligible for an unfair dismissal claim with Slater and Gordon.

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