Unfair Dismissal for Employees

Fixed Fee Consultation
Being dismissed from your job is an unwanted, difficult experience for anyone.

Unfair Dismissal for Employees

Fixed Fee Consultation
Being dismissed from your job is an unwanted, difficult experience for anyone.

How to Pursue an Unfair Dismissal or General Protections Claim

Being dismissed from your job is a difficult experience for anyone and in circumstances where it is unfair, or without justification, you may have redress against your former employer under the provisions of the Fair Work Act 2009.

Applications can be made to the Commission under unfair dismissal (for certain categories of employees) or general protections laws, but they must be made within 21 days of your dismissal taking effect.

What are the key differences between unfair dismissal and general protections laws?

If you believe you’ve been unfairly dismissed you will need to establish that your employer ended your employment without having a valid reason in a “harsh, unjust or unreasonable” manner and did not do so because of genuine redundancy.

If you work in a small business, you may instead claim your dismissal was not consistent with the Small Business Fair Dismissal Code.

Depending on the circumstances of your termination it may be more appropriate to apply to the Fair Work Commission through a general protections application, which means you believe your employer took adverse action against you by:

  • Ending your employment unfairly because you did, tried to, or planned to, exercise a workplace right (such as asking about pay or working conditions or taking personal/carers leave);
  • dismissed you for discriminatory reasons (your race, sexual orientation, age, religion, etc);
  • dismissed you for exercising, or trying to exercise, your freedom of association (e.g. by joining a union or taking part in protected industrial action).

There is considerable overlap between unfair dismissal and general protections actions, but under the terms of the Fair Work Act 2009, you may choose only one application.

Who is covered by the unfair dismissal laws?

Only employees covered by the national workplace relations system are covered by the unfair dismissal laws.

Whilst this is primarily drafted for employees covered under the Fair Work Act, there are similar provisions for public service and local government employees.  Employees in local government and public service may have access to unfair dismissal under State laws. In Queensland, the national workplace relations system governed by the Fair Work Act includes all employees in private enterprise.

Unfair dismissal is also restricted by a number of jurisdictional limits. Firstly, it is not available to people earning over a certain wage threshold (currently $148,700 per annum up to 30 June 2020). Employees that have been employed less than six months (or one year in the case of small business employers) are prevented from making an unfair dismissal claim. You must also be dismissed in accordance with a specific statutory definition (that is, is your dismissal “harsh, unjust or unreasonable”, as described in s 387 of the Fair Work Act). It is also not available in the case of a “genuine redundancy”, or to casual employees unless they have been engaged on a “regular and systematic basis”.

How do general protections laws work?

A general protections application is not as restricted as an unfair dismissal.

In particular, there is no wage threshold. A general protections application requires the employee to identify the workplace right and broader demonstrate that right was exercised or proposed to be exercised and that it was the reason, the employee was dismissed.

Unlike the unfair dismissal laws, you can make a general protections application whilst you remain an employee and the 21 day time-frame does not apply.  However if your employment is terminated any general protections application must be made in 21 days.

Other than dismissal, adverse actions by an employer might include:

  • Not giving you your legal entitlements;
  • altering your position to your disadvantage;
  • treating you differently to others; and/or
  • not hiring you, or offering different (and unfair) terms and conditions, compared to other employees.

What happens once you make an application to the Commission?

Once you make an application for either unfair dismissal or general protections to the Fair Work Commission (or the Queensland Industrial Commission for state based employees), you have effectively started a legal action against your employer.

Employers then have the right to respond to your application, outlining any objections they may have. Thereafter a date will be set for a conference where a Commission conciliator will try to help both sides resolve the dispute without the need for a more formal court hearing. If the dispute cannot be resolved, and both sides agree, the Commission will hold a formal hearing and make a final decision about the matter.

If one or both sides do not agree that the Commission should make a decision, then you may apply to the Court for a final decision.

Given the strict 21 day time frame in which a dismissed employee needs to make an application for unfair dismissal or general protections (involving dismissal only), you should immediately seek legal advice as a matter of urgency to help clarify your position and navigate this challenging workplace issue.

For employees, we offer a fixed fee consultation, with one of the experienced members of our team who can provide you with preliminary advice regarding your employment law issue.  If you would like to find out more about our fixed fee initial consultations, Click here

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