Being terminated from your employment, more commonly referred to as being ‘fired’, is an overwhelming experience – and often, feels unfair and wrong. Employment Law in Australia protects the rights of both employees and employers, and if you believe that you have been wrongfully terminated, there are two significant avenues worth considering when you are assessing whether or not to take legal action against your previous employer: UNFAIR DISMISSAL, and GENERAL PROTECTION.
Both Unfair Dismissal and General Protection claims provide mechanisms for redress, but they differ in their scope; requirements; and available outcomes. You should contact an experienced Employment Lawyer (such as a member of our team at Sambi Legal) if you are considering taking action through either of these claims; or, if you believe that you have been wrongfully terminated and need further guidance in obtaining a better outcome for yourself and your loved ones.
Unfair Dismissal
UNFAIR DISMISSAL occurs when an employee is terminated from their job in a harsh, unjust, or unreasonable manner.
The Fair Work Act 2009 (Cth) governs unfair dismissal claims in Australia. To be eligible to file an unfair dismissal claim, an employee must meet certain criteria (such as what is outlined below):
- The employee must have completed the minimum employment period (six months for large businesses and 12 months for small businesses); and
- The employee must be covered by a modern award, enterprise agreement, or earn less than the high-income threshold; and
- The dismissal must not be a case of genuine redundancy.
An Unfair Dismissal claim is lodged with the Fair Work Commission (the ‘FWC’).
The FWC will then assess whether the dismissal was harsh, unjust, or unreasonable by considering factors such as:
- Whether there was a valid reason for the dismissal related to the employee’s capacity or conduct
- Whether the employee was notified of the reason and given an opportunity to respond
- Any unreasonable refusal by the employer to allow the employee to have a support person present during discussions relating to the dismissal
- The degree to which the size of the employer’s enterprise and the absence of dedicated human resource management specialists would be likely to impact the procedures followed in effecting the dismissal
If the FWC finds that the dismissal was unfair, it can order remedies such as reinstatement of the employee to their former position or compensation for lost wages. The aim is to place the employee in the position they would have been in had the unfair dismissal not occurred.
DUE DATES & DEADLINES
An Unfair Dismissal claim must be lodged with the Fair Work Commission (the ‘FWC’) within 21 days of the dismissal taking effect.
General Protection
GENERAL PROTECTION claims, also known as ‘Adverse Action’ claims, are broader in scope compared to Unfair Dismissal claims. Claims of General Protection are designed to protect workplace rights, ensure freedom of association, and provide protection from workplace discrimination.
Under the Fair Work Act 2009 (Cth), adverse action includes actions such as:
- Dismissing an employee
- Injuring the employee in their employment
- Altering the position of the employee to their detriment
- Discriminating between the employee and other employees
A General Protection claim may be made if an employee believes they have been subjected to adverse action because they have exercised a workplace right, engaged in industrial activities, or because of their race, ethnicity/‘colour’, sex, sexual orientation, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction, or social origin.
The FWC will then attempt to resolve the matter through conciliation. If conciliation fails, the matter can be referred to the Federal Circuit and Family Court of Australia for a hearing and determination.
If the court finds that adverse action has occurred, it can order remedies such as reinstatement, compensation for loss, and penalties against the employer. The court can also issue injunctions to prevent further adverse action.
DUE DATES & DEADLINES
A General Protection claim must be lodged with the Fair Work Commission (the ‘FWC’) within 21 days of the ‘Adverse Action’ having occurred. Unlike Unfair Dismissal claims, there is no minimum employment period required to file a General Protection claim.
What To Do If You’ve Been Wrongfully Terminated
Often, it can be confusing and overwhelming to consider these issues after being terminated or having experienced adverse action.
If you have been wrongfully terminated, we believe you deserve justice. To assist you in narrowing down and explaining your options, and/or preparing or reviewing your claims so they are ready for submission to the Fair Work Commission, we invite you to contact our team at Sambi Legal for a free Initial Consult with one of our experienced and empathetic Employment Lawyers today.
