The Unfair Dismissal System & General Protections<\/h2>\n\n\n\n

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.<\/p>\n\n\n\n

Employees who meet the jurisdictional criteria, are protected from unfair dismissal under the Fair Work Act 2009 (Cth)<\/em>. 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.<\/p>\n\n\n\n

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.<\/p>\n\n\n\n

In fact, under the Fair Work Act 2009 (Cth)<\/em>, 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.<\/p>\n\n\n\n

Under the Fair Work Act 2009 (Cth)<\/em>, 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.<\/p>\n\n\n\n

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.<\/p>\n\n\n\n

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<\/em> 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.<\/p>\n\n\n\n