What Can I Do? What Are My Options, My Rights?
We get many enquiries regarding what are on the surface unfair dismissal enquiries for employees who have worked, relatively a short period of time, in what’s referred to as the probation period.
Probation periods typically last three to six months and are utilized to determine the suitability of a new employee to the workplace. If you are dismissed within this time, it is unlikely that you will meet the eligibility criteria to lodge an Unfair Dismissal Application with the Fair work Commission, which requires six months of employment in companies with more than 15 employees, or over 12 months in companies with fewer than 15 employees. However, this does not mean that you do not have rights. You are still entitled to pursue your rights through the Fair Work System. Even if ineligible for Unfair Dismissal, you may still be able to pursue a General Protections Application in the Fair work Commission.
It is important to note that if you have been dismissed during your probation period, you are still entitled to receive notice and be paid out your unused accumulated annual leave hours.
What are General Protections Applications?
General Protections Applications have slightly different requirements to Unfair Dismissal Applications, but they have very similar effects.
By pursuing either an Unfair Dismissal Application or a General Protections Application, you can seek either reinstatement of your position or financial compensation. Reinstatement often is not practicable due to a breakdown in the employment relationship, and therefore most applicants seek compensation. Compensation is considered an alternative to reinstatement and is thus limited to compensating you for a reasonable period that you may be out of work due to losing your job, which does not typically exceed six months.
To make a General Protections Application, you must establish that you were subjected to adverse action due to either discrimination, the exercise of a workplace right, or industrial action.
Adverse action is negative conduct towards an employee, which has occurred directly as a result of discrimination, the exercise of a workplace right, or industrial action. Adverse action may include dismissal, altering your employment, treating you less favourably than your colleagues, or injuring you in your employment.
Discrimination is defined as different or less favourable treatment due to a particular unchangeable attribute about you. The Fair Work Act 2009 (Cth) protects 13 specific attributes:
- Sexual orientation
- Physical or mental disability
- Marital status
- Family or carer’s responsibilities
- Political opinion
- National extraction
- Social origin
This means that if you are treated differently or worse than your colleagues for one of these reasons, you may have been discriminated against. Any instances of negative treatment due to the attribute, including the dismissal itself, can be considered adverse action, in respect of which you may be eligible to make a General Protections Application.
An exercise of a workplace right typically is where you have made complaints or enquiries about your employment. However, it also includes receiving a benefit or having a role or responsibility under a workplace law, or where you have commenced legal proceedings for a workplace matter. Workplace rights can also include rights in relation to JobKeeper and the COVIDSafe app.
If you have stood up for yourself in the workplace, raised concerns about something, or asked questions about your role, and as a result you were subjected to negative treatment, you may be eligible for a General Protections Application. I refer you to our general protections page which as a significant amount of detail, expanding the basis of claims.
Protections for industrial activity include where you engaged in, proposed to engage in, or refused to participate in industrial activity. Industrial action typically involves being a part (or not being a part of) unions.
In summary, if you believe your dismissal during your probation period was due to either a discriminatory reason, an exercise of a workplace right, or in relation to industrial activity, you may be able to lodge a General Protections Application in the Fair Work Commission.
What does the General Protections process look like?
Once you lodge a General Protections Application, which you can do yourself or through a representative such as ourselves, the Fair Work Commission usually responds within a week to notify you that the application has been accepted and likely schedules a conciliation conference to be within three to five weeks’ time.
Conciliation conferences are typically held over the phone and are essentially a negotiation to seek a remedy, that is, the outcome you are seeking, which may be compensation, reinstatement, payment of accrued entitlements, or anything else relevant. Conciliation conferences are a voluntary process for both employees and employers, but employers often do participate, especially if you have engaged a representative.
A conciliator from the Fair Work Commission is also in attendance, with the role of facilitating discussion and negotiation between the parties, potentially suggesting settlement options. The parties must agree on the settlement outcome, and no decision is made by the Fair Work Commission at this stage. However, you can maximize your chances of settling by engaging a representative to speak on your behalf and negotiate your case for you.
Whether it is a unfair dismissal claim or a general protections claim there is very strict 21 days to lodge a application. Lodge the application to the Fair work Commission at the first available opportunity within the 21 days. Its not 21 days from when you get your final payout, or your dismissal letter, its from you’ve been informed you have been dismissed.
How can I get started?
For a free consultation at A Whole New Approach P/L and to better understand what your rights are, contact 1800 333 666 to speak to our caring staff. If you are eligible for a Fair work Commission matter, we may be able to represent you and achieve the justice you deserve. Fixed fees or no win, no fee can apply