·  Legal News, Analysis, & Commentary


8 Reasons Ex-Employees Can Claim Unfair Dismissal

— July 14, 2022

The most common reason employees file for unfair dismissal, when it comes down to it, is lack of communication from the employer. ~ Jay Stafford, Law Firm of J.W. Stafford, L.L.C.

What is the most common reason employees file for unfair dismissal?

To help you appreciate the circumstances for which ex-employees can claim unfair dismissal, we asked HR managers and legal professionals this question for their best insights. From dismissals based on performance to false reasons for dismissal, there are several reasons given for which employees who are fired from work could claim unfair dismissal.

Here are eight reasons ex-employees can claim unfair dismissal:

  • Dismissals Based On Performance
  • Violation of The Family and Medical Leave Act
  • Fair Labor Standards Act Violations
  • Termination for Applying for Parental Leave
  • Employee Objecting To Unethical Business Practices
  • Discrimination
  • Failure To Communicate With Employee on a Standing Issue
  • False Reasons for Dismissal

Dismissals Based On Performance

While there are a number of reasons employers cite when dismissing an employee from the office, the one reason that seems quite common is failure to perform. And this is also one of the most common reasons employees file for unfair dismissal. The situation is quite understandable from the standpoint of both parties. While companies work on the foundational requirement that a certain amount of commitment or performance delivery is essential for a worker to be able to hold on to a job, they are also right in dismissing an employee who is repeatedly falling short. On the other hand, employees are often left confused on how their company can peg the onus of below-par performance on them alone, leading them to challenge these grounds for dismissal as unfair.

Riley Beam, Douglas R. Beam, P.A.

Violation of The Family and Medical Leave Act

Employers often find themselves on the wrong end of an unfair dismissal claim when they are in violation of the Family and Medical Leave Act (FMLA).  Many business owners have little knowledge of this statute and do not realize that employees have the right to inquire about their medical leave and or the specific guidelines that are on the books to protect those rights.

An employer cannot terminate an employee within 30 days of requesting medical leave or within 90 days of returning from one. Any exception to this rule, the employer is burdened with proving that any action taken against the employee was justified absent medical leave reasons. Although these legal requirements have been around for some time, it is still one of the most common reasons for wrongful termination cases.

Adelle Archer, Eterneva

Fair Labor Standards Act Violations

Retaliation against workers who file Fair Labor Standards Act violations is common, even though it’s legally prohibited. One example is in 2006, when an employee of a plastics manufacturer was fired from his job because he complained about the location of time clocks. Those clocks, according to the employee, were strategically placed far away from the area where workers put on their protective goggles and other gear. It was done to keep them from putting on their gear while on the clock. Workers were forced to punch in after spending several minutes per day preparing for work. The employee was fired and he filed suit against the company – and it was a case that made it all the way to the U.S. Supreme Court. The high court ruled 6-2 in the plaintiff’s favor.

Alan Ahdoot, Adamson Ahdoot Law

Termination for Applying for Parental Leave

An employee cannot be dismissed for exercising their right to apply for paternity, maternity, or adoption leave. Employees are entitled to up to 12 months of unpaid parental leave if they are going to have a baby or adopt a child. Additionally, if available, employees have the right to paid parental leave as described in the conditions of the policies set by their employers. Termination for exercising this right is grounds for unfair dismissal.

Datha Santomieri, Steadily

Employee Objecting To Unethical Business Practices

Whistleblower Lawsuit Seeks to Expose Texas AG's Retaliation
Photo by Patrick Fore on Unsplash

One common reason for filing a wrongful termination claim is an employer’s violation of public policy. In general, this applies to employees who believe they were fired for refusing to help their employers break the law. In other cases, a fired employee may have simply objected to unethical business practices. For example, a company accountant might object to being asked to do excessive tax write-offs. Employers may opt to behave unethically. The law however, protects employees should they be forced to make a choice between participating in unethical behavior or risk losing their jobs.

Erin Banta, Pepper


In our field, we encounter many low-income earners who face difficulties as a result of being let go for discrimination reasons. It is never highlighted, but their dismissal can be as a result of sickness, disability or many other factors that prevent the employee from perfecting the work as can be. When these cases are let go, it is very common for employees to file for unfair dismissal as their condition was not taken into account and was not accounted for by the company leading to letting them go.

Nicole Thelin, Low Income Relief

Failure To Communicate With Employee on a Standing Issue

The most common reason employees file for unfair dismissal, when it comes down to it, is lack of communication from the employer. Yes, there are legal causes of action that former employees bring alleging discrimination or retaliation, which certainly happens in some workplaces. At the heart of a lot of the disputes that arise, however, is this notion that the employer never told the employee their performance or interpersonal skills wasn’t up to par. When an employer fails to communicate with their employees regularly, then many employees feel blindsided and consider litigation.

Jay Stafford, Law Firm of J.W. Stafford, L.L.C.

False Reasons for Dismissal

Though at-will, employees can be terminated from their role, employers that violate their own written company policies or give false reasons for termination can be found guilty of unfair dismissal. When a business creates an employment contract, code, or conduct manual, they are bound to follow the rules they establish. If a company states an employee will receive written warnings before termination and they aren’t, the company has unfairly dismissed them. Similarly, many employees claim the reasons for dismissal cited to them were false, creating a potential case of unfair dismissal.

Brian Dechesare, Breaking Into Wall Street

Terkel creates community-driven content featuring expert insights. Sign up at to answer questions and get published. 

Join the conversation!