When an employee is dismissed and looking to lodge a claim against their employer, they will notice that the two applications that they can make to the Fair Work Commission.
These two applications are unfair dismissal (F2 Application) or a general protections application involving dismissal (F8 Application). So, you may be asking yourself, what is the difference between these two claims? Which claim should I lodge?
Although these claims both involve an employee being dismissed, they are not the same application and have very different criteria. Just because you may be eligible to lodge one of these two claims, does not mean you automatically qualify for the claim also. If you are unsure whether you have a claim or which application you can pursue, please give us a call on 1800 333 666 for a free and confidential consultation.
Now For the Detail
Unfair Dismissal and General Protections Claim – Criteria for Lodging
Unfair dismissal claims have jurisdictional criteria that an employee must meet or satisfy, before they are eligible for a remedy under the Fair Work Act 2009 (Cth). Firstly, an employee must have been dismissed. The term dismissed is defined in the Fair Work Act 2009 (Cth) as a situation where a person’s employment has been terminated at the employer’s initiative, or a person was forced to resign because of the conduct or course of conduct engaged in by the employer.
Secondly, the employee must be an employee, on a regular and systematic basis (for casuals), they must not be a contractor and must not have been employed for a specified period, task, seasonal contract or traineeship arrangement, and was dismissed at the end of the period, task, season or arrangement.
Thirdly, the employee must have completed the minimum employment period with the employer, being six months of continuous service for a large business or one year of continuous service if the employer is a “small business”. Under the Fair Work Act 2009 (Cth), a small business is a business that employs fewer than 15 employees, including casual employees that are employed on a regular and systematic basis.
In addition, the employee must earn less than the high-income threshold (which is currently $158,500 gross per year) or be covered under a modern award or enterprise agreement. Lastly, the employee must lodge their claim within 21 days of their dismissal taking effect. This time limit is strictly enforced, and claims lodged outside the 21 days, will only be accepted in exceptional circumstances.
In comparison, general protections claims do not such an extensive list of criteria. In order to be eligible to lodge a General Protections Claim, an employee must have been dismissed, which is the same test as for unfair dismissal claims. Secondly, the employee must lodge their claim within 21 days of their dismissal taking effect, just like in an unfair dismissal claim.
However, the general protections provisions afford greater protection to not only employees but include prospective employees, independent contractors (including prospective independent contractors), a person (the principal) who has entered into a contract for services with an independent contractor (including a principal who proposes to enter into a contract), and an industrial association (including an officer or member of an industrial association). There is also no high-income threshold or requirement for award or enterprise agreement and no minimum period of employment.
Despite less jurisdictional criteria for a General Protections claim, lodging this application is not a constellation prize for when you are ineligible to lodge an unfair dismissal claim. This means that just because you may be unable to lodge an unfair dismissal due to not meeting the requirements, you cannot automatically lodge a General Protections claim. These two claims have very different arguments and cover different aspects of the Fair Work Act 2009 (Cth), as discussed below.
Unfair Dismissal Regime and General Protections Provisions – Why are these claims different?
In the Fair Work Act 2009 (Cth), a person has been unfairly dismissed, if the Fair Work Commission is satisfied that an employee (who is protected from unfair dismissal) has been dismissed and the dismissal was harsh, unjust or unreasonable, was not consistent with the Small Business Fair Dismissal Code (in the case of small business employers) and was not a case of genuine redundancy (if applicable).
When assessing whether a dismissal is harsh, unjust or unreasonable, the Fair Work Commission must take into account:
- whether there was a valid reason for the termination which relates to the employees’ capacity or conduct.
- whether the employee was notified of this reason.
- whether the employee was given any opportunity to respond to that reason.
- whether there was any unreasonable refusal by the employer to allow the presence of a support person for any discussion relating to the termination.
- whether the employee was warned about unsatisfactory performance prior to the termination if this was the reason for the termination.
- the degree to which the size of the employer’s enterprise would likely impact on the procedures followed in making the termination.
- the degree to which the absence of dedicated human resource manager specialists or expertise in the employer’s enterprise would be likely to impact on the procedures followed in the termination; and
- any other matters the Commission considers relevant.
In summary, the unfair dismissal regime looks as to whether an employee deserved the sack, whether they had ever had any warnings and the procedure in which they were dismissed.
Employees who meet the jurisdictional criteria, are protected from unfair dismissal under the Fair Work Act 2009 (Cth). The unfair dismissal regime establishes a framework for dealing with dismissal or termination by balancing the needs of a business (including small business) and the needs of employees. This regime also acts to establish procedures which are quick, flexible and informal and address the needs of employers and employees and to provide remedies where a dismissal is found to be unfair, with an emphasis on reinstatement.
In contrast, the General Protections provisions, as set out in Part 3-1 of the Fair Work Act 2009 (Cth), prohibit employers from taking adverse action against an employee because of a workplace right or industrial activities and protects against discriminatory treatment on the basis of protected attributes or sham arrangements. These claims do not consider any principles of fairness regarding the termination itself, as in an unfair dismissal claim. The only consideration for the Fair Work Commission is whether or not an employee has a workplace right or has exercised a workplace right and whether an employer has acted adversely towards the employee because of this.
Under the Fair Work Act 2009 (Cth), a person has a workplace right if they are entitled to the benefit of a workplace law or instrument, has a role or responsibility under a workplace law or instrument, is able to initiate or participate in a process or proceedings under a workplace law or instrument and is able to make a complaint or inquiry to seek compliance with a workplace law or instrument. Under the Fair Work Act 2009 (Cth), adverse action includes dismissal of an employee but encompasses a range of other actions such as prejudicing the employee, injuring the employee in his or her employment or discriminating against them. In order to be eligible to lodge a general protections application involving dismissal (F8 Application), the final adverse action by the employer must be termination or dismissal of the employee.
An example of a scenario in which an employee will have grounds to lodge a claim could be has been dismissed after they made a complaint about bullying or sexual harassment. Although the employer may not disclose this as the reason for termination, the Fair Work Commission will look at the probability that the employee was dismissed because of their complaint.
The difficulty of these applications and the most frequent reason that an applicant fails in a general protections case, is that he or she is held to have failed to establish this “because of” causative link. The General Protections provisions are very narrow and they require the causative link to be made out, in order for an employee to be successful. Thus, it is almost irrelevant whether the employee was dismissed in a fair way, whether there was a reason for their dismissal or whether they had received any warnings in their employment.
However, the legislation includes a reverse onus in relation to the reasons for taking an action.
This means that although the employee must still establish that they have a prescribed ground and have suffered adverse action within the meaning of the legislation, once the employee alleges their employer took action for a particular reason, it is presumed that the employer’s action was taken for that reason unless the employer proves otherwise. The employee is relieved of the burden of proving the employer’s reason for taking an action. Thus, the employer must demonstrate that they terminated the employee for a reason, which is not prohibited.
Fair Work Commission Procedure and Remedies for Unfair Dismissal
If an employee lodges an Unfair Dismissal Application (Form F2), the Fair Work Commission will set the matter down for a conciliation conference. This conference is an informal method of attempting to resolve either of the two disputes. In this conference, an independent conciliator from the Fair Work Commission will assist the parties in exploring options for resolution and help them to reach an agreement, without the need for a formal hearing or court proceedings.
In these private and without prejudice conferences, an employee can ask for a variety of remedies but most commonly, an employee will seek:
- to have their termination rescinded and for the employer to allow them to resign
- for the employer to provide them with a Statement of Service.
Importantly, unfair dismissal claims have a compensation cap of 26 weeks or half the amount of the high-income threshold immediately before the termination, whichever is lesser.
If the parties are unsuccessful in reaching an agreement for an Unfair Dismissal claim, the matter will automatically proceed to a formal conference or hearing within the Fair Work Commission, unless the employee chooses to discontinue their application. Unlike the conciliation conference, an arbitration is a formal process, similar to a court trial, in which a member of the Commission decides for the parties what the solution should be, whether there has been an unfair dismissal and decide the remedy. This decision would only be made after the parties have had a chance to present their evidence and arguments. A decision in the Fair Work Commission can take up to a few months but it may be costly if you engage a representative.
In regard to remedies that can be awarded at arbitration by a Fair Work Commission Member, an employee can be awarded compensation if the Fair Work Commission is satisfied that reinstatement is inappropriate. Compensation in this form is designed to compensate unfairly terminated employees in lieu of reinstatement for losses reasonably attributable to the unfair termination. As a result, compensation cannot be awarded for shock, distress or humiliation.
When determining the amount of compensation that may be awarded, the Fair Work Commission will take into account the employees’ length of service, the remuneration the employee would have received, or would have been likely to receive, if they had not been terminated, the efforts of the employee to mitigate the loss suffered because of the termination, such as looking for alternative work, the amount of remuneration earned by the employee from employment or alternative work during the period between the termination and making the compensation order. Aforementioned, there is a compensation cap of 26 weeks or half the amount of the high-income threshold immediately before the termination, whichever is lesser. At arbitration, the Fair Work Commission Member cannot order a Statement of Service be provided and the decision is publicly listed online for anyone to see.
Fair Work Commission Procedure and Remedies for General Protections Claims
Once an employee lodges a general protections application involving dismissal (F8 Application), the Fair Work Commission will set the matter down for a conciliation conference. This procedure is the same as in an unfair dismissal case and the remedies an employee can seek are virtually the same.
However, in addition to seeking compensation for economic loss due to the employee’s dismissal, they can also seek damages for shock, distress or humiliation.
There is also no cap on the amount of compensation that can be sought or awarded by a Court, but the court does look to the same factors as in an unfair dismissal claim (i.e., length of service, the remuneration the employee would have received, or would have been likely to receive, if they had not been terminated etc.). However, the Court will also look at the non-economic detriment of the employee, when deciding to award damages. This includes medical evidence or doctors’ reports which demonstrate pain and suffering.
If the parties are unsuccessful in reaching an agreement for a General Protections Claim and the Fair Work Commission is satisfied that all reasonable attempts to resolve the dispute have been, or are likely to be, unsuccessful, then the Commission must issue a certificate to that effect. A person has only 14 days after the day the certificate is issued by the Fair Work Commission, to make a general protections court application in the Federal Court or Federal Circuit court.
The Federal Court or the Federal Circuit Court may make any order the court considers appropriate if the court is satisfied that a person has contravened, or proposes to contravene, the General Protections provisions. Orders that the Federal Court or Federal Circuit Court may make include an order granting an injunction, or interim injunction, to prevent, stop or remedy the effects of a contravention, an order awarding compensation for loss that a person has suffered because of the contravention (which can include interest), or an order for reinstatement of a person. However, the Federal Court or the Federal Circuit Court process and waiting for an order, can take years and cost tens of thousands in legal fees.
How Can We Help?
Are you looking at making a claim but are unsure about how to approach the situation? You may need to seek advice and/or representation through a paid agent or lawyer. As independent workplace advisors, A Whole New Approach (paid agents) can provide you with representation in your unfair dismissal or general protections claim. A Whole New Approach has run and been successful in over 10,000 cases in the Fair Work Commission, Anti-Discrimination Commissions, Boards and Tribunals. We draft the claims and applications on your behalf to a Federal Court standard, run the conciliation conferences, run arbitrations and have thousands of decisions published in the various jurisdictions. Although we would act as your advocate, we provide even handed advice in regard to the prospects of your case.
If you are unsure whether you have a claim or which application you can pursue, please give us a call on 1800 333 666 for a free and confidential consultation. Its free,
 Fair Work Act 2009 (Cth) s 361.