Marshall Q&A – Topic 9: Unfair Dismissal v General Protections

Question: I've been unfairly dismissed – what FWC claim should I make?

Short Answer: What is your commercial objective? Unfair Dismissal is generally easier to establish but has limited remedies in comparison to General Protections.

Key Takeaways

• If you were fired for exercising a 'workplace right' – General Protections
• If your dismissal was simply harsh or unfair – Unfair Dismissal
• General Protections requires an extra layer of proof but offers greater remedies

The difference between Unfair Dismissal and General Protections applications in the Fair Work Commission (FWC) can appear subtle. Often both pathways will be applicable but, as only one claim can be filed, the applicant must ultimately decide which route to pursue.

Eligibility

The first step when making a claim to the FWC is to ensure that you are eligible. You can take the 'eligibility quiz' for both Unfair Dismissal and General Protections on the FWC website. The quizzes assess factors such as whether:

• you were an 'employee' (for further information, see our previous article here);
• you were 'dismissed' or faced 'adverse action';
• you are bringing the application within 21 days of the dismissal or adverse action occurring;
• your employer is a national system employer;
• you earn less than the high-income threshold (currently $153,600);
• you have completed the minimum period of employment (either 6 or 12 months); and
• you are covered by any awards or enterprise agreements.

Unfair Dismissal

Unfair Dismissal claims broadly cover dismissals that are 'harsh, unjust, or unreasonable'.

'Harsh' means that the outcome is disproportionate to the gravity of the conduct. It requires consideration of the applicant's personal circumstances (such as the financial or emotional effect of dismissal).

'Unjust' means that dismissal was not a fair outcome. This might be because the employee was not guilty of the alleged conduct or because the alleged conduct had otherwise been accepted by the employer.

'Unreasonable' means that the employer's processes (performance plans, investigations, etc) were not objectively reasonable or their conclusions were not properly supported by the evidence they relied upon. This could mean for example that unreachable standards were

applied in a performance plan, that no proper investigation was made into alleged conduct, or that the employer refused to allow a support person to attend any meetings.

Unfair Dismissal applications are primarily concerned with the circumstances and subjective impact of the dismissal. Likewise, the available remedies are focussed towards addressing those issues.

General Protections

General Protections claims cover employees who have faced 'adverse action' (such as dismissal, demotion, or other negative action) because they have exercised a workplace right. Essentially this means that employees have fundamental rights that cannot be used as grounds for negative action against them.

These rights broadly include:

• benefits under workplace laws or instruments (such as leave entitlements, minimum wages, etc);
• the ability to make complaints or inquiries (for example to clarify entitlements or seek unpaid wages); and
• protected industrial action. 

The subtlety here is that General Protections claims are not concerned about the actual circumstances or impact of the dismissal. They are instead concerned with the more objective question of whether the dismissal was motivated by the employee's exercise of a protected right.

An interesting feature of General Protections claims, and one that can catch employers off guard, is that once it is alleged that the employer took action against the employee because of a protected reason then the onus is on the employer to prove otherwise.

Note: General Protections also cover other types of workplace discrimination (e.g. because of race, sex, pregnancy, etc.). For the purposes of this article, we have focussed primarily on protected workplace rights.

Comparison

Unfair Dismissal claims focus primarily on the subjective circumstances of the dismissal and this is reflected in the available remedies. Applicants can seek compensation for lost earnings (up to a maximum of 6 months' wages) or, where appropriate, reinstatement. Financial penalties and compensation for non-pecuniary loss (emotional distress, humiliation, etc) are NOT available under Unfair Dismissal claims. This means that Unfair Dismissal claims are particularly effective for unrepresented applicants seeking either reinstatement or small amounts of compensation.

General Protections remedies reflect the nature of the fundamental rights they protect. Applicants can seek uncapped compensation which may include non-pecuniary loss as well as

lost earnings. The FWC may also impose financial penalties against the employer as a deterrent to similar future conduct.

General Protections is the more sophisticated pathway. The higher available compensation (which also accounts for non-pecuniary loss and financial penalties) makes it more attractive to applicants who are seeking a large payout and generally sees employers expend more resources in defending the claim. The limiting factor is that it is irrelevant how unfair or harsh a dismissal might be – these claims can only arise where employers have taken action against an employee because of a protected reason.

Takeaway

Unfair Dismissal and General Protections are distinct actions that nevertheless feature some overlap. Proceeding with the wrong pathway however, could ultimately be fatal to the claim. There are numerous cases of applicants forgoing appropriate compensation simply because they have persisted with the wrong claim. If you are facing workplace issues, contact Marshall Lawyers for a discussion on how we can assist you.