The difference between unfair dismissal and general protections

 

Unfair dismissal

Unfair dismissal occurs when an employee is dismissed and the Fair Work Commission finds that there was not a valid reason for the dismissal or that the manner in which they were dismissed was harsh, unjust or unreasonable.

The Commission considers these aspects of unfair dismissal separately and has frequently determined that while the employer may have had a valid reason for the dismissal, there was a lack of procedural fairness.

Therefore, it’s important to remember that there not only needs to be a valid reason for termination, but that termination must also be procedurally fair.

 

Who can claim unfair dismissal?

Employees who are covered by an award or enterprise agreement, and who have worked for the employer for at least six months (or 12 months in the case of small businesses with less than 15 employees) can claim unfair dismissal. Non-award employees and those covered by an enterprise agreement who earn less than the high income threshold (currently $145,400) can also apply.

The employee has 21 days from the date of dismissal to lodge a claim for unfair dismissal with the Fair Work Commission.

 

What is the process?

Where an application for unfair dismissal has been made, an initial conference is then held between the employer and employee to attempt to resolve the issues. If the matter is not resolved, then the matter may proceed to hearing before the Fair Work Commission and the Commission will consider:

• Whether there was a valid reason for the termination
  
  AND
  
  
• Whether the termination was harsh, unjust or unreasonable.

 

Valid reason

The reason for terminating an employee must be sound, well founded and defensible. When considering an unfair dismissal application, the Fair Work Commission looks for evidence that there was a valid reason for the dismissal.

Employers may view continued poor performance, incapacity to do the job, breaches of policy and procedures, or serious misconduct as valid reasons for dismissal. However the Commission will examine all the circumstances surrounding the termination to make their decision as to whether there was a valid reason.

 

Harsh, unjust or unreasonable

In deciding whether a dismissal was harsh, unjust or unreasonable, the Fair Work Commission must take into account all of the following factors:

• Whether there was a valid reason for the dismissal related to the employee’s capacity or conduct
• Whether the employee was notified of that reason and given an opportunity to respond
• Whether there was any unreasonable refusal by the employer to allow the employee to have a support person present to assist at any discussions relating to dismissal
• Whether the termination related to unsatisfactory performance and the person had been warned
• The degree to which the size of the employer’s enterprise and the degree to which the absence of dedicated human resource management specialists or expertise would be likely to impact on the procedures followed in effecting the termination
• Any other matters that the Commission considers relevant.

 

What can the Fair Work Commission award?

Employees who have made successful unfair dismissal claims may be reinstated and/or compensated up to a maximum of six month’s pay or half the amount of the high income threshold, whichever is the lesser amount.

General protections

The general protections provisions set out by the Fair Work Act 2009 are designed to protect:

• a person from workplace discrimination
• a person who exercises a workplace right
• freedom of association
• an employee who is temporarily absent from work due to illness or injury from termination.

The general protections provisions cover a range of areas and can be breached even if there has been no termination of employment.

The provisions apply not only to employees, but also prospective employees, independent contractors and others. Here, we focus only on the protections against unlawfully terminating an employee.

General protections protect an employee for having adverse action taken against them, such as being dismissed, for reasons that are against the law including:

• A person’s race, colour, sex, sexual preference, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin (some exceptions apply, such as where it’s based on the inherent requirements of the job)
• Temporary absence from work because of illness or injury
• Trade union membership or non-membership
• Participation in trade union activities outside working hours or, with the employer’s consent, during working hours
• Seeking office as, or acting as, a representative of employees
• Being absent from work during parental leave
• Temporary absence from work to engage in a voluntary emergency management activity
• Making a complaint or enquiry in relation to their employment.

Unlike unfair dismissal, the length of service has no effect on an employee’s ability to lodge a claim for general protections. The act of termination for an unlawful reason is sufficient for an employee to lodge a claim.

General protections claims can be lodged up to 21 days after the dismissal. The claim process followed is similar to that for unfair dismissal in that a conference is held in an attempt to resolve the matter. If the matter is not resolved, a certificate may be issued to have the matter dealt with by the Federal Circuit Court or Federal Court. 

Once an employee has alleged that their termination was in breach of general protections provisions, the onus lies on the employer to prove the termination was not unlawful. In other words, the onus of proof is reversed during these proceedings.

Remedies for unlawful dismissal include reinstatement, uncapped compensation and injunctions. Additionally, the court may award penalties of up to $12,600 for individual employers and $63,000 for corporations.