When an employee’s employment has been terminated, the choice of legal action is usually an unfair dismissal claim or a breach of general protections rights claim under the Fair Work Act (unless the Fair Work Ombudsman or a union is taking action). These are statutory remedies and it is necessary to be familiar with their statutory requirements and framework. They are alternatives and a choice has to be made about which claim to bring. A claimant cannot commence both. There is a time limit of 21 days on filing an application in the Fair Work Commission (FWC) in both cases. Contract or consumer law will rarely provide a practical alternative and stand alone discrimination law is often not an attractive option for termination based claims.
Sometimes an unfair dismissal claim will not be an alternative due to jurisdictional factors. In the majority of cases however, there is a choice to be made with potentially significant consequences. An unfair dismissal claim is the most popular option because it is quick, cheap and easy (relatively speaking in legal terms). The existence of a valid reason for termination by the employer is a relevant factor but so is procedural fairness and whether the dismissal was otherwise harsh, unjust or unreasonable. In short, almost everything is relevant in an unfair dismissal claim.
A general protections claim, on the other hand, is not about unfairness but unlawfulness. The question is whether a matter related to a workplace right was one of the reasons for termination. It is often useful to use the analogy of retaliation. Was the dismissal a retaliation or “get even” for something to do with the employee’s workplace rights (as defined by the Fair Work Act)? There is a reverse onus of proof on the employer so it is up to the employer to disprove that the workplace right was an operative reason in the decision to terminate. But there still needs to be smoke to be fire. And not everything is a workplace right. It is important to be very careful in articulating the relevant workplace right and the causal connection between the workplace right and the termination. Whilst not exhaustive, the following questions can be asked:
a. Does the employee hold any legislative role such as being an Occupational Health and Safety Representative?
b. Has the employee been involved recently in any enterprise bargaining, industrial or OHS activity?
c. Have there been any issues recently involving the National Employment Standards (eg, the taking of leave, requests for flexible working arrangements, refusal to work overtime)?
d. Are there any facts that might raise issues of unlawful discrimination (eg, on the basis of age, race, political affiliations, disability etc)?
e. Has the employee had any recent workers compensation claim?
f. Has the employee made a complaint or enquiry about employment recently.
What about remedy? In an unfair dismissal claim, the statutory remedy is reinstatement if practicable and/or compensation for loss of income which is capped at 6 months pay. That is the maximum that can ever be ordered (and it is usually less). On the other hand, there is no cap in general protections claims. Reinstatement can be ordered but so can compensation for things like economic loss, pain and suffering and medical expenses. In practice, there is often little difference in amounts awarded in the two types of claims. It is rare that civil penalties are awarded in breach of workplace rights cases. And in both cases, there is little connection between the mere manner of termination and the amounts awarded. It is a question of loss.
In both cases, a conference in the FWC is the first step. However, if there is no settlement at the conference, the pathways are usually different. An unfair dismissal claim may take 2 or 3 months to get to hearing in the FWC whereas a general protections claim may take a year or more. It is usually necessary for the claim to be conducted in the Federal Circuit and Family Court of Australia (FCFOA) and the process is generally much more legalistic than in the FWC.
In making a choice, it is useful to consider the following:
• Does the evidence favour one claim or the other – what is the vibe?
• Beware the faintly arguable when considering a breach of general protections case – the mere existence of something vaguely resembling an inquiry or a complaint does not guarantee success;
• Reinstatement is unlikely in general protections cases given the time involved to hearing;
• Courts are generally conservative in assessing economic loss;
• Be robust about the practical challenges involved in litigation and your willingness and ability to conduct significant litigation over a potentially extended period – a claim in the FCFOA is not to be commenced lightly;
• Legal representation in general protection claims is very expensive, there is no guarantee of a costs order if successful (or of no costs order against you if not successful) and no win no fee lawyers are rare.
Our general rule of thumb approach is that, whilst not perfect, an unfair dismissal claim is generally the more practical alternative. An unlawful dismissal will always be unfair but an unfair dismissal will not always be unlawful. Employees should consider getting advice about the best avenue before commencing a claim. Further detailed information about these claims can also be found in the Fair Work Commission benchbooks on unfair dismissal and breach of general protections.
Please contact us if you would like any further information or help.