What Can Dismissed Employees Do?

There are a number of legal avenues you can pursue in Australia if you have been dismissed from your job in unjust circumstances. The two most common actions available for dismissed employees in Australia under the Fair Work Act 2009 are:

An Unfair Dismissal claim ; and
A General Protections claim

UNFAIR DISMISSAL

Unfair dismissal occurs when a worker has been dismissed from their job and that dismissal was harsh, unjust or unreasonable and it is not a case of genuine redundancy. A case of genuine redundancy is when the employer no longer requires the employee’s job to be done by anyone.

What is dismissal?

A worker is dismissed when:

- The company has terminated the worker from their job on their own initiative; or
- Someone is forced to resign either because of the conduct of the company or because they were left with no other option but to resign. This is known as constructive dismissal.

What is deemed harsh, unjust or unreasonable dismissal?

The Fair Work Act outlines the matters that must be taken into account in determining this. They include:

- - Whether there was a valid reason for the dismissal related to the person’s capacity or conduct.
  - Whether the person was notified of that reason;
  - Whether the person was given an opportunity to respond to it.
  - In the case that the dismissal was related to unsatisfactory performance, if the person was warned about that performance prior to the dismissal.
  - The size of the company’s enterprise and whether it is likely to impact on the procedures followed in effecting the dismissal; and
  - Whether the company’s access to dedicated human resource management specialists or expertise in the enterprise would impact the procedures followed in effecting the dismissal; and
  - Any other matters that the Commission considers relevant.

An example of a dismissal that was deemed harsh and unjust in Fagan v Department of Human Services, a prison officer was dismissed for taking toilet paper to an inmate during a lockdown. Another employee was not dismissed for the same conduct. The conduct of the two employees was comparable and there was differential treatment. Therefore, the termination was found to be harsh in the circumstances.

There is no limit as to what could be classified as unfair dismissal. Other examples include making a small mistake, you were not given a reasonable opportunity to improve your performance or you failed to meet deadlines because your workload was larger than one could expect in your position.

Who is eligible for protection?

Under the Fair Work Act, you may be eligible to make a claim to the Fair Work Commission for unfair dismissal if you meet the following criteria:

Firstly, you need to be a national system employee, which means working for:

- - A constitutional corporation (basically a company)
  - The commonwealth or a commonwealth authority
  - Any other person or entity that carries on an activity (whether of a commercial, governmental or other nature) in a Territory and employs persons in connection with that activity
  - A body corporate incorporated in a territory; or
  - A person who, in connection with trade and commerce, employs an individual as a flight crew officer, a maritime employee or a waterside worker.

Secondly, you need to be earning less than the high-income threshold, which is currently $138,900, or be covered by a modern award or enterprise agreement.

Thirdly, you also need to have completed a minimum employment period of:

- - 6 months, if the business you work for has more than 15 employees; or
  - 1 year if you work for a small business. A small business is defined as a company that employs less than 15 employees.

If you have been unfairly dismissed from your job and wish to make an unfair dismissal claim, you must make an application to the Fair Work Commission within 21 days after the date of your dismissal.

Unfair Dismissal Remedies

If your claim for unfair dismissal is successful, you can either be reinstated to your position or awarded compensation.

Provisions of the Fair Work Act cap the amount of compensation you can be awarded for an unfair dismissal claim. You can be awarded no more than $69,450.

GENERAL PROTECTIONS

You may make a general protections claim to the Fair Work Commission if someone has taken adverse action against you for exercising a workplace right, engaging in industrial actions, being temporary absent from work or for a reason that is discriminatory.

What is adverse action?

The Act sets out the circumstances in which a person takes adverse action against another person. An employer will take adverse action against an employee if they dismiss the employee, injure them in their employment, alter the employees position to the employee’s prejudice or discriminate between the employee and another employee.

The definition of adverse action also includes prospective employers and prospective employees. So a prospective employer will also be deemed to have taken adverse action against a prospective employee if they refuse to employ the prospective employee or discriminate against the prospective employee in the terms or conditions on which they offer to employ them.

Workplace rights, Industrial actions and discriminatory reasons

Under the Fair Work Act, a person must not take adverse action against another person because they have a workplace right, have or have not exercised a workplace right or proposes to (or not to) exercise a workplace right.

Workplace rights can include the right to: correct pay, leave or other entitlements, make a complaint or enquiry about workplace conditions or have a benefit provided under an Industrial law or instrument (for example, an award, enterprise agreement or workplace safety law).

Adverse action also cannot be taken because a person engages in industrial action. Some examples of engaging in industrial action include being a member of a union or taking part in lawful strikes.

Discriminatory reasons for taking adverse action include terminating a person’s employment or failing to employ them on the specific grounds outlined in the Fair Work Act. These grounds are the person’s race, colour, sex, sexual orientation, age, physical or mental disability, marital status, family or carers responsibilities, pregnancy, religion, political opinion, national extraction or social origin.

However, discrimination does not entail any action that is not unlawful under any anti- discrimination law or that is taken because of inherent requirements of the particular job concerned.

Who is eligible for protection?

The general protections provisions protect national system employers and employees as well as prospective employers and employees. They also cover Independent contractors and those who have entered into contracts of service with them.

They protect people in respect of actions taken by constitutionally covered entities. These include constitutional corporations, the commonwealth, a commonwealth authority and a body incorporated in a territory.

General Protection Remedies

There is no cap on the amount of compensation that may be awarded for a general protections claim.

WHAT CLAIM TO MAKE- UNFAIR DISMISSAL OR GENERAL PROTECTIONS?

If you want to make a claim against your employer what avenue should you choose, a general protections claim or an unfair dismissal claim?

General protections claims generally have more advantages. Firstly, they cover adverse action being taken against you for a very broad range of reasons; for example, exercising workplace rights and discrimination.

Additionally, there is no minimum employment period or income threshold that need to be met in order for a person to be eligible to make a general protections claim. However, these restrictions do exist with unfair dismissal claims. Unlike unfair dismissal, general protections claims are also available to both employees and prospective employees. An advantage of this is that it captures any unfair conduct in the recruitment process.

General protections claims are also available to both casual and permanent employees and Independent contractors.

Another advantage is that there is no cap on the amount of compensation that may be rewarded for general protections claims.

You should obtain legal advice to decide which claim is better for your particular circumstances.

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