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

  • Workplace rights 
  • Freedom of association 
  • Protection from workplace discrimination 
  • Relief for discrimination, victimisation or other unfair treatment. 
  • 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

  • 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.
  • reinstatement (getting the job back)
  • ​compensation (no more than 26 weeks’ pay) 
  • non financial remedies like a written statement of service 

  • Do you have questions or comments about a general protections or unfair dismissal claim? Be sure to leave them below. 


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    Vivian Michael
     

    Vivian Michael is a lawyer and founder of Michael Law Group. Vivian's mission is to deliver the best quality business legal services to entrepreneurs launching an Australian business, wherever they are in the globe.

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