The Fair Work Act provides employees with general protections during their employment and for most employees, protection from unfair dismissal.
If an employee has been dismissed unfairly, or as a result of a breach of a general protection, the employee may have grounds to lodge an application with the Fair Work Commission seeking reinstatement and / or compensation.
For disputes not involving dismissal, an employee may be able to apply to the Fair Work Commission to assist in resolving workplace disputes. The Fair Work Commission has jurisdiction to deal with:
- breaches of general protections not involving dismissal
- applications for orders to stop bullying
- applications for orders to stop sexual harassment
- disputes in relation to the application of an award, enterprise agreement or the National Employment Standards (NES)
What is unfair dismissal?
Employees are protected from unfair dismissal if they have been employed for at least 6 months (or 12 months for a small business) and their employment is covered by an award or enterprise agreement or their earnings are less than the high-income threshold. Casual employees may also be protected if they work on a regular and systematic basis.
A dismissal occurs when the employment is terminated at the employer’s initiative, or the person has been forced to resign due to inappropriate conduct by the employer making it impossible for the employee to continue working.
An unfair dismissal occurs when an employee has been dismissed and the dismissal was harsh, unjust or unreasonable or not a case of genuine redundancy.
What constitutes “harsh, unjust or unreasonable”?
A dismissal will be harsh if dismissing an employee is disproportionate to the employee’s misconduct or poor performance or if the dismissal has serious adverse economic or personal consequences on the employee.
A dismissal will be unjust if the employee is not guilty of the alleged misconduct or poor performance.
A dismissal will be unreasonable if the evidence or material relied on by the employer does not support a decision to terminate the employee’s employment or the investigation or performance management process was not conducted reasonably.
In determining whether a dismissal is harsh, unjust or unreasonable, the Fair Work Commission will take into account:
- whether there was a valid reason for the dismissal related to conduct or performance
- whether the employee was notified of the reason
- whether the employee was given an opportunity to respond
- whether the employer unreasonably refused to allow the employee to have a support person at any meetings or discussions about the dismissal
- if the dismissal was performance related, whether the employee was given a warning and an opportunity to improve performance
- whether the employer’s size or access to HR specialists impacted on the dismissal process
If you are an employee and you think you may have been unfairly dismissed, we can advise on whether you have grounds to make an unfair dismissal application.
What are general protections?
General protections are intended to:
- protect a person’s workplace rights
- protect freedom of association
- provide protection from workplace discrimination and
- to provide effective relief for workers who have been discriminated against, victimised, or have experienced other unfair treatment
An employer must not take any ‘adverse action’ against an employee because of their workplace rights, because the employee has exercised their workplace right, or intends to exercise their workplace right.
Workplace rights include:
- being entitled to the benefit of or having a role or responsibility under a workplace law or industrial instrument
- being able to initiate or participate in a process or proceeding under a workplace law or instrument, for example, proceedings under the Fair Work Act or WHS legislation
- Being able to make complaints or inquiries in relation to employment or to bodies such as the Fair Work Ombudsman or ACT Workcover who have capacity to enforce compliance with workplace laws
Adverse action can include:
- dismissing an employee
- injuring an employee in their employment
- changing an employee’s position to their disadvantage
- treating an employee differently than other employees
Breach of general protections claims can be difficult for employees to succeed in as the employer has the onus of proving the adverse action they took was not taken because of a prohibited reason. At Mackenzie Workplace Law, we are experienced in dealing with breach of general protections matters for both employees and employers and can provide advice on this tricky area of workplace law.
When can an employee make an application to the Fair Work Commission?
An application for unfair dismissal or breach of general protections involving dismissal must be received by the Fair Work Commission within 21 days of the dismissal date. This is a strict time limit and applications lodged after this period may not be accepted unless there are extenuating circumstances.
For employees, we strongly recommend getting legal advice as soon as possible after a dismissal to protect your rights to make an application to the Fair Work Commission.
Who is excluded from applying for unfair dismissal?
Probationary employees who have not worked for the minimum employment periods, casual employees who do not work on a regular and systematic basis and employees on fixed term or fixed project contracts (as the employment automatically ends at the end of the contract so there is no dismissal) are excluded from making unfair dismissal applications. However, those employees may be entitled to lodge a breach of general protections application involving dismissal, if they have grounds to do so.
Managing disputes in the workplace
Workplace disputes can lead to poor morale and may result in financial and reputational loss for an organisation. When managing workplace disputes, each party should be aware of their legal rights and responsibilities and be encouraged to find practical, workable solutions that avoid protracted legal proceedings, wherever possible.
Dispute resolution systems should be fair, transparent, and consultative and aimed at effectively resolving issues promptly. Meetings should take place in a confidential and non-threatening environment and should follow any processes required by legislation, which may also be reflected in the employment contract or workplace policies.
Effectively managing employees and minimising workplace issues fosters a cohesive and productive workforce, with high standards of safety, welfare and mutual respect.
We have expertise across all areas of employment law and can provide assistance and guidance for both employers and employees regarding unfair dismissal or general protection claims. We have worked with employers in many industries to help proactively manage their workplaces to effectively reduce or resolve a range of workplace disputes.