There Are Two Different Applications: Unfair Dismissal and General Protections
It is crucial to understand the difference between an Unfair Dismissal Application and a General Protections Application.
If an employee is fired and wants to file a claim against their employer, they will see that there are two forms they can submit to the Fair Work Commission. It is important that when an employee is looking to lodge a claim against their employer, that they understand the difference. Failure to understand the difference or lodging the incorrect application could result in you not receiving the best outcome.
These are unfair dismissal applications (F2 Application) and general protectives applications involving dismissal (F8 Application). You may now be wondering what the differences are between these claims. Which claim should you file?
These claims can both involve the dismissal of an employee, however they are different and require very different criteria. Depending on the circumstances surrounding your dismissal or unfair treatment you may be able to put forward an application for one or either. However, as mentioned above you need to ensure you are choosing the right form.
To ensure you can make the best informed decision contact our team for an obligation free and confidential consultation to discuss your options.
The Difference
Below, we explain the difference between an Unfair Dismissal & General Protections claim, along with the criteria for lodging these.
Unfair Dismissal Claims
Outline below are some considerations that each employee needs to understand when determining whether or not an application for Unfair Dismissal can be put forward to the Fair Work Commission.
Jurisdictional Criteria
Unfair Dismissal Claims have jurisdictional criteria an employee must meet before they can be eligible for a remedy under Fair Work Act 2009. (Cth). First, the employee must have been fired. In the Fair Work Act 2009(Cth), the term “dismissed” is defined as when an employee’s employment was terminated by the employer or the person was forced to resign because of the conduct of the employer.
Employed on a Regular Systematic Basis
In order to lodge an unfair dismissal claim you must be employed on a regular, systematic basis (for casuals), and not be a contractor. The person lodging the application or putting forward a claim must not be deemed an employee hired for a specific period, task or seasonal contract (For example, a Christmas Contract) and was dismissed / terminated at the agreed end date.
Minimum Employment Term & Small Business
The third requirement is that the employee needs to have completed the minimum employment period. This means the employee must have served six months continuous service in a large company or one year continuous service in a small business. A small business is defined as a business with fewer than 15 employees. This includes casual employees who are employed on a regular basis and are not working in a systematic manner. Read more about the small business dismissal code.
Unfair Dismissal Salary Threshold
The employee must also earn less than the high income threshold, which is currently $158,500 per year, or be covered by a modern award/enterprise agreement.
21 Days To Lodge
The employee must file a claim within 21 days after their dismissal. This deadline is strictly enforced and any claims filed after the effective date of dismissal will not be accepted unless there are exceptional circumstances.
General Protection Claims
General Protection Claims, however, do not have such a long list of criteria as an unfair dismissal application does. To be eligible for a General Protections Claim, an employer must have been fired. This is the same test that applies to unfair dismissal claims. Second, an employee must file their claim within 21 calendar days of the date that their dismissal takes effect. This 21 day requirement is the same as when lodging unfair dismissal claims.
Fair Work General Protections Provisions
The general protections provisions provide greater protection for employees. They also protect prospective employees, independent contractors (including potential independent contractors), an individual (the principal), who has entered into a service contract with an independent contractor (including the principal who intends to enter into such a contract), as well as an industrial association (including any officer or member thereof). A high income threshold, or requirement to award or enter into an enterprise agreement, is not required. There is no minimum employment period.
General Protections Claim For Those Ineligible For An Unfair Dismissal Claim
Despite less jurisdictional criteria for a General Protections claim, lodging this application is not a constellation prize for when you are ineligible to lodge an unfair dismissal claim. This means that just because you may be unable to lodge an unfair dismissal due to not meeting the requirements, you cannot automatically lodge a General Protections claim. These two claims have very different arguments and cover different aspects of the Fair Work Act 2009 (Cth), as discussed below.
Unfair Dismissal Regime and General Protects Provisions – What makes these claims so different?
The Fair Work Act 2009 (Cth) provides protection to employees against unfair dismissal. If the Fair Work Commission finds that the dismissal of an employee was unjust, harsh, or unreasonable, is not consistent with the Small Business Fair Dismissal Code (in case of small-business employers) ,and is not a case for genuine redundancy (if any) then this could be grounds for unfair dimissal.
Below are some of the points the Fair Work Commission in Australia will assess when determining if a dismissal was unjust, harsh or unreasonable.
- Whether there was a valid reason to terminate the employment relationship that relates directly to the employee’s capacity or conduct.
- If the reason was given to the employee.
- Whether the employee was allowed to respond.
- Whether the employer refused to permit a support person to attend any termination discussion.
- If the reason for termination was unsatisfactory performance, whether the employee was warned.
- The extent to which the employer’s business would likely influence the termination procedures.
- The extent to which the absence or incompetent expertise of Human Resource Managers would likely impact the termination procedures; and
- Any other matter that the Commission considers important.
The Unfair Dismissal System & General Protections
The unfair dismissal system, in summary, looks at whether the employee deserved to be fired. It also looks at whether the employee ever received warnings, what the process was in maintaining procedural fairness in the workplace.
Employees who meet the jurisdictional criteria, are protected from unfair dismissal under the Fair Work Act 2009 (Cth). The unfair dismissal system establishes a framework for dealing with dismissal or termination by balancing the needs of a business (including small business) and the needs of employees. This system also provides a framework for establishing quick, flexible, informal procedures that address both the needs of employees and employers. It also offers remedies in cases where dismissal is deemed unfair with a focus on reinstatement.
The General Protections provisions in Part 3-1 (Cth) of the Fair Work Act 2009(Cth) prohibit employers from adversely acting against employees because of workplace rights or industrial activities. They also protect against discriminatory treatment based on protected attributes or sham arrangements. These claims don’t consider fairness principles regarding termination, such as unfair dismissal claims. The Fair Work Commission’s sole consideration is whether or not an individual has a workplace rights or has exercised one, and whether or not an employer has acted in a negative manner towards an employee because this.
In fact, under the Fair Work Act 2009 (Cth), a person has a workplace right if they are entitled to the benefit of a workplace law or instrument, has a role or responsibility under a workplace law or instrument, is able to initiate or participate in a process or proceedings under a workplace law or instrument and is able to make a complaint or inquiry to seek compliance with a workplace law or instrument.
Under the Fair Work Act 2009 (Cth), adverse action includes dismissal of an employee but encompasses a range of other actions such as prejudicing the employee, injuring the employee in his or her employment or discriminating against them. In order to be eligible to lodge a general protections application involving dismissal (F8 Application), the final adverse action by the employer must be termination or dismissal of the employee.
A situation in which an employee could have grounds to file a claim is if they were dismissed following a complaint of bullying or sexual harassment. The employer may not reveal the reason for the termination, but the Fair Work Commission will consider the likelihood that the employee was dismissed due to their complaint.
This is the problem with these applications. The most common reason applicants fail in general protections cases is that they are held to not have established this ” due to causal link. General Protections provisions are extremely narrow. They require that the employee proves the causal link in order to succeed. It is irrelevant, therefore, whether the employee was fired fairly, whether there was a reason or if they were given warnings.
Reverse Obligation
The legislation does however include a reverse obligation in relation to the reasons for taking action.
This means that even though the employee must prove that they had a prescribed ground and that they were subject to adverse action under the legislation, the employer is not required to prove that the employer took the action. The employer must prove that the reason for terminating the employee is legitimate.
Fair Work Commission Procedure and Remedies For Unfair Dismissal
The Fair Work Commission will refer an employee who files an Unfair Dismissal App (Form F2) to the Fair Work Commission . This conference is an informal way to try and resolve one of the disputes. An independent conciliator from Fair Work Commission will help the parties explore options and reach an agreement without the need to have a formal hearing.
These confidential and without prejudice conferences allow employees to ask for various remedies, but the most common is that they will seek:
- Compensation
- To have their termination annulled and for the employer permission to permit them to resign
- Employer to give them a Statement of Service.
Importantly, unfair dismissal claims are subject to a Compensation Cap of 26 weeks or half of the unfair dismissal high income threshold immediately prior to termination.
If there is no agreement between the parties regarding an Unfair Dismissal case, the matter will be automatically transferred to the Fair Work Commission for a hearing or conference. Unless the employee decides to withdraw their application, An arbitration, unlike the conciliation conference is a formal process. It’s similar to a court hearing in which a member decides for the parties what the solution should look like, whether there was unfair dismissal, and the remedy. After the parties have presented their arguments and evidence, this decision will be made. Although a decision at the Fair Work Commission may take several months, it can be an expensive battle.
An employee may be awarded compensation in the event that the Fair Work Commission determines that reinstatement is not appropriate. This form of compensation is intended to compensate employees who are unfairly terminated in lieu of reinstatement for any losses that could reasonably be attributed to the unfair termination. In this way, compensation can’t be given for shock, distress, or humiliation.
The Fair Work Commission will consider the length of employment, the remuneration that the employee would have received or would be likely to receive if they were not terminated, and the efforts of an employee to minimize the loss. This includes looking for alternative work. It will also consider the employee’s earnings from work or other work in the time period between termination and the making of the compensation order. As mentioned, the compensation capis 26 weeks. This is equal to half of the unfair dismissal high income threshold immediately prior to the termination. The Fair Work Commission Member cannot request a Statement of Service. However, anyone can see the decision online.
Fair Work Commission Procedure and Remedies For General Protections Claims
The Fair Work Commission will convene a conference to discuss the general protections request involving dismissal filed by an employee. The procedure is identical to an unfair dismissal case, and the remedies that an employee can seek are almost the same.
They can also seek damages for distress, shock, or humiliation in addition to economic losses resulting from the employee’s termination.
The Court can award any amount of compensation, but there is no limit on how much. However, the court will look at the same factors as an unfair dismissal case (i.e. length of service, the remuneration that the employee would have received or would be likely to receive if they were not terminated, etc.). The Court will consider the employee’s non-economic harm when awarding damages. This includes any medical evidence or doctor’s reports that demonstrate pain and suffering.
If there is no agreement between the parties regarding a General Protections Claim, and the Fair Work Commission feels that all reasonable attempts have failed, the Commission will issue a certificate. Employee’s can make a general protections court request in Federal Court or Federal Circuit courts within 14 calendar days of the date the certificate was issued by the Fair Work Commission.
What happens if the Federal Court or Federal Circuit Court finds a person has contravened or intended to contravene the General Protection provisions? If the court finds that a person has violated or intends to violate the General Protections provisions, either the Federal Court or the Federal Circuit Court may make any order it considers appropriate. The Federal Court and Federal Circuit Court can issue orders to grant an interim or permanent injunction to stop, stop, or remedy contraventions, as well as an order awarding compensation (which may include interest) for losses suffered by a person due to the contravention. The Federal Court and Federal Circuit Court processes can take many years and can cost thousands of dollars.
What Can We Do?
Do you want to file a claim for dismissal but aren’t sure how to proceed? A paid lawyer or agent may be able to provide you with advice and representation. We are an independent Workplace Advisor that can assist you in your unfair dismissal and general protections claims. AWDR have represented over 10,000 clients in these cases. We can draft your claims and applications to the Federal Court standard. We also run conciliation conferences and arbitrate. There are thousands of decisions published across the different jurisdictions. We would be your advocate, but we can also provide advice on the prospects of your case.
