Unfair dismissal and general protections: what to do when you’ve been wrongfully terminated

If you’ve lost your job, and something about the process or the circumstances felt wrong to you, the phrase “unfair dismissal” probably comes to mind. In Australia, that is the claim most people associate with a wrongful termination of employment.

But before you go filing a claim with the Fair Work Commission, there are a few things you should know.

“Unfair dismissal” is a specific legal framework that only applies to some sackings, and which only some people have access to. It may depend on the length of your employment, the size of your employer, and your income.

For some people, an unfair dismissal claim may not be the best legal approach, and fortunately, it isn’t the only framework for challenging a sacking. In Australian workplace law, there’s another framework, known as general protections, that can be a better option.

Choosing the right claim can make a big difference to how your claim plays out, including any potential compensation payment.

If you think your boss was discriminating against you, or retaliating against you for exercising a workplace right, you might have a claim under the general protections framework.

In some sackings, you might have access to both. But you have to choose one: if you make an unfair dismissal claim, you can’t also make a general protections claim, and vice versa. What’s more, you have to act fast. Whichever option you pursue, you must lodge an application within 21 days of your employment ending (and that time limit includes weekends and public holidays!).

Unfair dismissal, general protections, and adverse action: the basics

The employment of most private sector employees in Australia, and certain public sector employees, is covered by the Fair Work Act 2009 (Cth). That legislation contains the two separate and distinct ‘unfair dismissal’ and ‘general protections’ jurisdictions.

Under this law, an unfair dismissal is one where the decision to sack an employee was “harsh, unjust, or unreasonable”. In simple terms, that means there wasn’t a good enough reason or a good enough process.

This might mean:

• there was no valid basis for the dismissal (for example, a defensible or well-founded conduct or performance concern)
• the punishment was disproportionate to the conduct or performance issue
• the investigation or disciplinary process wasn’t carried out in a way that was procedurally or substantively fair

There is no hard-and-fast definition of what is “harsh, unjust, or unreasonable”, but there are some things that the Commission has to consider when determining a case of alleged unfair dismissal. These include things like:

• whether the reason for dismissal was a valid one related to the person’s capacity or conduct
• whether the person was given notice of the reason for dismissal, and either a chance to respond or to improve their behaviour
• whether the company was large and well-resourced enough to be able to conduct a fair disciplinary or dismissal process
• other circumstances that might render the dismissal ‘harsh’ (for example, the employee’s length of service and their relevant disciplinary record)

The framework of general protections is different.

Sacking someone, or otherwise subjecting them to detriment in the workplace, is referred to adverse action. The law prohibits employees from being subjected to adverse action, if the reason (or at least part of the reason) for that adverse action is a prohibited reason: for example, the person’s race, or because they complained about their pay being late.

There are some exceptions, but in general, this framework seeks to protect people against being sacked because they exercised an entitlement, made a complaint, or because of unlawful discrimination.

Conduct by employers or managers that can give rise to an arguable general protections claim include:

• Retaliation for making a complaint or asking a question about your employment
• Discrimination for reasons including race, sex, disability status, or sexual orientation
• Dismissing someone for a temporary absence because of an injury or illness
• Preventing a worker from exercising their trade union rights

An unfair dismissal claim is concerned with a lack of a valid reason or a failure to follow procedure. A general protections claim is concerned with the presence of a bad reason. Obviously, in many cases, these overlap. But if you want to take a former employer to court, you can only choose one framework to operate in - and the one you choose can make a big difference.

Unfair dismissal or general protections: which one should I choose?

There are many considerations which will be relevant to whether you should (or can) lodge an unfair dismissal application or a general protections application, other than just the reason for dismissal.

You can only make an unfair dismissal application if you earn less than a certain amount You also need to be continuously employed for either 6 or 12 months, depending on the size of your employer. Those limits do not apply to general protections claims.

Compensation in unfair dismissal claims is capped. There is no cap on compensation for general protections claims.

For those reasons, general protections claims might be the better (or only) option for high income earners or people who experienced discrimination or retaliation from managers.

However, general protections claims are often more difficult than unfair dismissal claims, and can take a longer time. Although both claims begin with applications to the Fair Work Commission, general protections claims will proceed to the courts if conciliation isn’t successful.

Factors that can contribute to whether an unfair dismissal or a general protections claim is a better option for you include:

1. How long you were employed
2. Your disciplinary record
3. How much you are paid 
4. The process of the dismissal
5. Any evidence about the suspected reason for dismissal
6. The impact the dismissal has had on you.

Examples

• An office administrator makes an error in an important document. With no notice, they are brought into a meeting with their manager, who puts them on a performance improvement plan. The terms of the plan are vague and seem impossible to meet. The employee request clarification, but none is given. Three weeks later, they are sacked for ‘performance issues’, without being given an opportunity to respond to the concerns. Even though the employee made a mistake, the process of sacking them might be “harsh, unjust or unreasonable” – this might be a case of unfair dismissal.
• An executive raises concerns about being subjected to sexist behaviour at a work party. After this, the company’s executive team become increasingly hostile to her, and later her position is made redundant. She believes that this is a response to her bringing up her concerns about the way she was treated at the work party. If that’s true, it might be a case of adverse action under the general protections jurisdiction: her employer had prohibited reasons for ending her employment.
• During a team meeting, a waiter in a café points out that his payslips do not include superannuation payments. Afterwards, his manager sends him a text saying he should not have raised this issue in front of other team members. A month later, the waiter is told that he will receive no more shifts as his performance is substandard. This could be a case of unfair dismissal, as it is quite a harsh penalty without a well-thought-out process, but if the waiter is employed casually, they will not be eligible. However, it might also be a case of adverse action under general protections, because this worker might have suffered retaliation from exercising their right to make an inquiry about their employment.

As these examples show, the differences can be subtle, and in many cases the laws overlap.

What’s more, there are other areas of law – such as anti-discrimination legislation – that can apply in certain cases.

Seeking advice and assistance when you’ve lost your job

Losing your job can be incredibly stressful. However, you should be aware of the strict 21-day limit on lodging claims.

If you think you might have an unfair dismissal claim or a general protections claim, we can provide advice on how to proceed.