General Protections Claim or Unfair Dismissal Claim? The distinction and relationship.

Workplace harassment can lead to general protections claim

Being at the mercy of your employer in the workplace can be a terrible experience, especially if they do not respect your rights, protect your interest or care about the consequences of their adverse actions on employees. There are various ways employees are covered in the workplace. These provisions are available to ensure employees’ rights are protected at all times. One such provision is the General protections claim.

A General protection claim is advisable If you have been dismissed from work because you exercised a workplace right, or due to adverse actions. You can opt for an unfair dismissal claim when you are unjustly dismissed from your job or caused to resign due to hostile working conditions. Whether you are aiming for General protections or unfair dismissal, checking your eligibility to make such a claim is paramount.

Have you been dismissed from work? Do you want to seek redress over an unjust termination? Are you confused about deciding to go for General protection or an unfair dismissal claim? Keep reading to find out the distinction and relationship between General protection claim and an unfair dismissal claim.

Employee frustrated for being unfairly dismissed

General protections claim

The General protection claims surface when an employee seeks redress because of an adverse action caused by exercising their workplace right. Adverse actions refer to harmful measures someone took or is threatening to take. This can occur when:

  • An employee is threatened with being dismissed
  • Injured or intend to injure someone in the workplace
  • Discriminates against an employee in the workplace. This could either be due to sex, race, age, physical disability, or Pregnancy.
  • Prejudicing an employee at the workplace. E.g.  Deciding not to hire them.

This is also effective when an employer fires someone due to prohibited reasons for dismissal.

Reasons prohibited by law include:

  • Sick leave: if an employer takes an adverse action (dismissal) on an employee due to long sick leave, then such a person can apply for the generation protections claim. According to the Fair Work Ombudsman, employees who can provide evidence of their illness or injury are protected from being dismissed if they are (1). away for less than 3 consecutive months or less than 3 months in total over the last 12 months, or (2) Still using their paid sick leave.
  • Discrimination: employees who are being discriminated against at work either due to race, gender, or disability can claim general protections. This is applicable even if they have not been dismissed.
  • Workplace rights: This is a major determinant of whether a claim should be general protection or unfair dismissal. Any breach of an employee’s right in the workplace is addressed through the general protection claim. This claim protects an individual from receiving unfair treatment at the workplace because such an individual has a workplace right, wishes to exercise, or has exercised such right.
  • Industrious actions: All Australian employers, employees, and independent contractors are free to become, or not to become, members of an industrial association, such as a trade union or employer association. They are also free to engage in industrial action if they choose. As such, it is unlawful for an employer to dismiss an employee for either choosing to partake or not, in industrial actions.

The General Protection provision is set out in parts 1-3 of the Fair Work Act 2009. There are two types of General protection claims.

  • General protection dismissal: This happens if you have been fired after exercising a workplace right or due to lawful prohibited reasons. You will have to fill the Form F8.
  • General protections no dismissal: this is when there is no termination of employment. You will need Form F8C.

Unfair dismissal claim

An unfair dismissal claim is made when an employee’s dismissal is termed unjust, harsh, or unreasonable.

The Fair Work Commission (Fair Work Act s.394) describes an unfair dismissal as a situation when an employee is dismissed, and

  • The dismissal was harsh, unjust, or unreasonable
  • The dismissal was not a case of genuine redundancy
  • The employee was employed by a small business, the dismissal was not consistent with the Small Business Fair Dismissal Code.

The importance of this claim is to protect employees from arbitrary dismissal by employers over trivial issues. This also ensures they are not fired due to false redundancy at the workplace. To apply for this claim, an employee must fill the Form F2 within 21 days from the date they were dismissed.

Just like in general protections, there are eligibility tests to determine whether an employee can apply for an unfair dismissal claim. They include:

  • They must be working for a national system employer. The majority of employers in Australia are national system employers.
  • They must have worked for at least the minimum employment period before the dismissal (6 months, or 12 months if the employer is a small business)
  • They must earn less than the high-income threshold. The exception is if an award or agreement covers them.

The distinction and relationship between General protection claim and unfair dismissal claim

It can be very confusing to differentiate between a General protection claim and an unfair dismissal claim. This is due to various similarities between both provisions. Just like in an unfair dismissal claim, an employee has a period of 21 days to apply for their claim to be valid. Both processes also involve the same redress process, from conciliatory meetings to formal hearings when the case is not resolved. Whether you are opting for General protections or unfair dismissal, there is a provision for compensation, which include remuneration, reinstatement, and compensation.

It is also worth noting that while both provisions may seem similar, there exist core distinctions that should be carefully noted. For an employee to make an unfair dismissal claim, such a person must have either been dismissed or forcefully resigned (constructive dismissal). While general protections can either be applied whether the employee has been dismissed or not.

While general protections aim at preserving employees’ rights in the workplace and eliminating chances of being dismissed due to prohibited reasons, an unfair dismissal claim applies to cases where an employee termination does not follow procedural fairness; even if they have allegedly committed serious misconduct at work.

Do I lodge a general Protections Claim or Unfair Dismissal Claim?

Wrapping up

As employees, it is imperative to understand your rights in the workplace and various options available for you to seek redress when such rights are infringed. You should be able to determine whether you should get a general Protections claim or opt for an unfair dismissal claim.

An unfair dismissal claim is best suitable for cases where your employer’s intent to terminate your employment contract is harsh, unjust and unreasonable. On the other hand, General protections refer to adverse actions in the workplace meted out by employers to their employees.

Before you take a decision to pursue a claim, you should consider getting professional help; this will ensure you weigh your eligibility and options for seeking redress. A Whole New Approach can help you if you are considering an unfair dismissal claim or General Protections. We are a team of dedicated workplace advisors interested in keeping your professional reputation spotless. Still in doubt, get a free consultation today when you call any of our team on 1300 766 700.