The difference between a general protections and unfair dismissal claim
23 December 2019
Employee’s may make a number of claims when they end their employment. In this article, we're comparing 2 of those claims; the general protections and unfair dismissal claim.
Here’s what you need to know.
In a hurry? Jump ahead.
First, let’s start with general protections.
General protections
General protections claims have to do with:
- Workplace rights
- Freedom of association
- Protection from workplace discrimination
- Relief for discrimination, victimisation or other unfair treatment.
What employer’s can’t do
Employers cannot take ‘adverse action’ against someone, like an employee, because they have a workplace right, have exercised a workplace right or propose to exercise one.
What is adverse action?
Below are ways that an employer can take adverse action against an employee or potential employee:
- dismissing them
- not giving them their legal entitlements
- changing their job to their disadvantage
- treating them differently than others
- not hiring them
- offering them different (and unfair) conditions, compared to other employees.
Minimum employment period
General protections may be lodged by both employees and prospective employees, so there is no minimum employment period that must have been worked before a claim can be made.
Remedies
Remedies for a general protections claim include:
- an order for reinstatement of the person
- an order for the payment of compensation to the person
- an order for payment of an amount to the person for remuneration lost
- an order to maintain the continuity of the person’s employment, or
- an order to maintain the period of the person’s continuous service with the employer.
Unfair dismissal
A person has been unfairly dismissed if the Fair Work Commission is satisfied that an employee (who is protected from unfair dismissal) has been dismissed and the dismissal:
- was harsh, unjust or unreasonable; and
- was not consistent with the Small Business Fair Dismissal Code (in the case of employee’s of a small business), and
- was not a case of genuine redundancy
Fair Work’s criteria for unfair dismissal
In considering if a dismissal was harsh, unjust or unreasonable, Fair Work must take into account the factors below (s. 387 Fair Work Act 2009 (Cth)):
Reason
If there was a valid reason for the dismissal.
Notice
If the person was notified of that reason.
Response
Whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
Support Person
Any unreasonable refusal by the employer to allow that person to have a support person present to assist in any dismissal discussion.
Unsatisfactory performance warning
If the dismissal related to unsatisfactory performance, whether they had been warned about that unsatisfactory performance before dismissal
Employer size
degree to which the size of the employer’s business would impact the procedures for dismissal.
Human resources
The degree to which the absence of HR would be likely to impact on the procedures followed in effecting the dismissal.
Other
Fair work will consider any other relevant matters.
Minimum employment period
Employees have to be employed for at least 6 months before they can apply for unfair dismissal.
Employees working for a small business have to be employed for at least 12 months before they can apply.
If there was a change of business ownership, service with the first employer may count as service with the second employer when calculating the minimum employment period.
Remedies
Remedies for an unfair dismissal are determined by the Fair Work Act 2009 (Cth) and include:
- reinstatement (getting the job back)
- compensation (no more than 26 weeks’ pay)
- non financial remedies like a written statement of service
Table - key differences
Feature | General Protections | Unfair Dismissal |
---|---|---|
Claim basis | Dismissal was was harsh, unjust or unreasonable | |
Minimum employment period | None, prospective employees may also apply | 6 months or 12 months for a small business with < 15 workers |
Remedies |
Do you have questions or comments about a general protections or unfair dismissal claim? Be sure to leave them below.