Unfair Dismissal vs General Protections (Adverse Action) Claims
By Renee Karakinos, Law Graduate, MST Lawyers and Chao Ni, Senior Associate, MST Lawyers
It is critically important for business owners, employers and employees to understand their rights and obligations surrounding termination of employment under the Fair Work Act 2009 (Cth) (Act).
This article examines two different types of claims that an employee can choose to make following their cessation of employment:
- An unfair dismissal claim; and
- A general protections (adverse action) claim.
The former has been a staple of Australian workplace laws for the past three decades, while the latter was introduced with the commencement of the Act.
According to the Annual Report of the Fair Work Commission, general protections claims have become increasingly utilised by dismissed workers over the past couple of years:
|
|
Unfair Dismissal Applications |
General Protections Applications Involving Dismissal |
|---|---|---|
FY16/17 |
14,135 applications lodged |
3,729 applications lodged |
FY15/16 |
14,694 applications lodged |
3,270 applications lodged |
FY14/15 |
14,624 applications lodged |
3,382 applications lodged |
FY13/14 |
14,797 applications lodged |
2,879 applications lodged |
FY12/13 |
14,818 applications lodged |
2,429 applications lodged |
FY11/12 |
14,027 applications lodged |
2,164 applications lodged |
The table below explains the key points of difference between an unfair dismissal claim and general protections claim.
|
|
Unfair Dismissal |
General Protections |
|---|---|---|
Who is protected? |
Permanent employees or long-term regular and systematic employees: · who have completed at least six months of continuous service (or in the case of a small business employer, 12 months); and · earn less than the high-income threshold or are covered by an enterprise agreement or modern award.
|
All employees, irrespective of their length of service, position, remuneration or whether an enterprise agreement or modern award covers them. |
What are the legal issues in dispute? |
Was the termination of the employee’s employment harsh, unjust or unreasonable? |
Whether a decision to terminate an employee’s employment was made for a prohibited unlawful reason (e.g. a discriminatory reason or because the employee has exercised a workplace right)
|
Onus |
The onus falls on the applicant to establish that the dismissal was harsh, unjust or unreasonable. |
The onus falls on the applicant to establish that the dismissal took place because they exercised a workplace right. Thereafter, the onus falls on the respondent to prove that the dismissal did not take place for a prohibited reason (the reverse onus).
|
The timeframe for lodging a claim |
21 days to file a FWC application from the date of termination of employment. |
21 days to file a FWC application from the date of termination of employment. 14 days to file Court application from the FWC issuing a certificate stating that all reasonable attempts made to resolve the dispute have been unsuccessful.
|
Process |
Conciliation at the FWC, followed by arbitration by a member of the FWC. |
Conciliation at the FWC, followed by an application to be filed either in the Federal Circuit Court or the Federal Court for hearing before a judge.
Parties may agree voluntarily for the application to be heard by the FWC instead of the Court.
|
Process time |
About six months from the date of the initial application for a decision to be reached. |
About 18 months from the date of the initial application to reach a decision.
|
Representation |
Lawyers and paid agents must seek permission to represent a party in the FWC. |
Corporations must be represented by a lawyer in either the Federal Circuit Court or Federal Court.
Individual litigants can elect to be represented or unrepresented.
|
Potential Orders |
The FWC could order the following: · Reinstatement and compensation for all lost wages. · Compensation for lost wages capped at six months’ pay of either the employee’s actual remuneration or the annual high-income threshold. |
The Court could order the following: · Reinstatement and compensation for all lost wages. · Uncapped compensation for economic loss such as lost wages and interest. · Uncapped compensation for non-economic loss, such as for hurt, humiliation and distress. · Pecuniary penalties under the Act.
|
For more information on the risks associated with these two types of claims, please contact the MST Lawyers’ Employment Law team by email or call +61 3 8540 0229.
