Unfair dismissal v general protections claims

Unfair dismissal and general protections claims are both applications that can be made in the Fair Work Commission if you have been dismissed from your employment. Both claims allow you to pursue compensation/reinstatement.

However, there are key differences between unfair dismissal and general protections claims that are important to know about. Be aware of your options and which type of legal claim you are eligible for. This will allow you to achieve the best possible outcome.

When can I claim for unfair dismissal?

An unfair dismissal claim may be appropriate if you believe that:

• Your dismissal was harsh, unjust or unreasonable;
• There was no valid reason for your dismissal (relating to conduct or capacity); or
• You were not notified or given an opportunity to respond to the reason for your dismissal.

There are a few requirements to establish for an unfair dismissal claim:

You must have completed the minimum employment period of six months employment (or 12 months for a small business).

If you are dismissed within six months of commencing your employment, then you will not be not eligible to make an unfair dismissal claim. This is irrespective of whether you have completed a probationary period or not.

You must also be employed by a National System Employer, or covered by a modern award or enterprise agreement, and not be a high-income earner (at time of writing $158,500 per year). This figure is adjusted annually on 1 July. Most ANMF members are eligible to make an unfair dismissal claim if they have been employed for more than six months.

Importantly, you must lodge an application in the Fair Work Commission within 21 days from the date of your dismissal.

What remedies can I claim for unfair dismissal?

1. Reinstatement

This is described as the “primary remedy” for unfair dismissal claims, although in reality it is a rare occurrence. An order for reinstatement means the employer must reappoint you to the position you were in immediately prior to your dismissal. Even if you win your claim, reinstatement will depend on a number of things including any breakdown in your relationship with your employer.

2. Monetary compensation

If reinstatement is not appropriate, then an order for compensation for lost wages may be awarded. The maximum amount of compensation you can receive is 26 weeks’ pay. Compensation is also limited to loss of income and does not include pain and suffering. This means that if you pick up a new job soon after being dismissed, your compensation calculation will be limited.

When can I make a claim for general protections?

A general protections claim is another option to consider if you have been dismissed. To make this claim, you must be able to show that the employer dismissed you because you exercised a workplace right, or for another reason or attribute that is protected under the Fair Work Act. These include:

• Attributes such as age, race, disability, gender, marital status, carer responsibilities and religious or political beliefs.
• Industrial activity such as membership with a union.
• Absences from work for illness, injury or leave.
• Complaints or inquiries about your employment.

Unlike unfair dismissals, there is no minimum period of employment to meet in order to make a general protections claim. This means that if you were employed for, say, four weeks before being dismissed, you can still make a claim if you believe you were dismissed for a protected reason.

Your general protections claim must also be made within 21 days from the date of your dismissal.

What remedies can I claim for general protections?

The same remedies as for unfair dismissal are available, i.e. reinstatement and monetary compensation. However, there are some additional remedies to know about for general protections that differ from unfair dismissals:

• Compensation is not capped at 26 weeks’ pay. Under the law, there is no limit to how much compensation you can claim.
• You can also claim for non-economic loss such as pain and suffering due to the loss of employment.

Conclusion

While unfair dismissal and general protections are both claims you can make if you have been dismissed, remember that there are important differences between the two.

If you are involved in a disciplinary process or you are otherwise concerned that your job is in jeopardy, you should contact the ANMF for advice and assistance.

If you have been dismissed, you should contact ANMF immediately. The 21-day time limit that applies to dismissal matters is enforced strictly by the Fair Work Commission.

ANMF members who have been dismissed may be referred to Gordon Legal for advice about which type of claim is best suited to their circumstances.