Employment Law: The Difference Between General Protections and Unfair Dismissal

In the complex landscape of employment law in Australia, two significant areas often come into focus: general protections and unfair dismissal. Both are designed to safeguard employees’ rights, yet they serve distinct purposes and operate under different legal frameworks. Understanding these differences is crucial for both employers and employees to navigate the legal system effectively, and to resolve any employment disputes which may arise. This article delves into the nuances of general protections and unfair dismissal, providing insights, and exploring a recent case study to explain these concepts.

Understanding General Protections

General protections, as outlined in the Fair Work Act 2009 (Cth) (the Act), are designed to protect workplace rights, ensure freedom of association, and provide protection from workplace discrimination. These protected attributes are broad and cover a wide range of scenarios, ensuring that employees are not treated unfairly or discriminated against for exercising their rights. For example, Part 3-1 General Protections of the Act contains section 351 which states that ‘An employer must not take adverse action against a person who is an employee, or prospective employee, of the employer because of the person’s’:

  • race
  • colour
  • sex
  • sexual orientation
  • breastfeeding
  • gender identity
  • intersex status
  • age
  • physical or mental disability
  • martial status
  • family or carer’s responsibility
  • subjection to family and domestic violence
  • pregnancy
  • religion
  • political opinion
  • national extraction
  • social origin

These characteristics are considered ‘protected attributes’ under the Act. If an employer takes ‘adverse action’ against an employee because of one of these characteristics, then the employer is liable for a ‘general protections’ claim, and penalties under the Act.

Key Features of General Protections

  • Protection from adverse action: Employees are protected from adverse actions taken by employers, such as demotion, discrimination, or termination, due to exercising a workplace right.
  • Freedom of association: Employees have the right to join or not join a union, and participate in lawful industrial activities without fear of retribution.
  • Protection from discrimination: Employees are safeguarded against discrimination based on race, sex, age, disability, and other protected attributes outlined above.

General protections apply to all employees, regardless of their employment status, and even extend to prospective employees. This broad applicability makes general protections a powerful tool for ensuring fair treatment in the workplace.

Understanding Unfair Dismissal

Unfair dismissal occurs when an employee is terminated in a harsh, unjust, or unreasonable manner (see section 385 of the Act).

Criteria for Unfair Dismissal

  • The employee must have completed the minimum employment period (6 months for large businesses, 12 months for small businesses).
  • The dismissal must be considered harsh, unjust, or unreasonable.
  • The employee must be covered by a modern award, enterprise agreement, or earn below the high-income threshold.

Unfair dismissal claims focus on the fairness of the termination process and the reasons for dismissal, rather than workplace rights and protected attributes.

Key Differences Between General Protections and Unfair Dismissal

While both general protections and unfair dismissal aim to protect employees, they differ in several key aspects:

  • Scope: General protections cover a broader range of issues, including discrimination and adverse action, while unfair dismissal specifically addresses the fairness of termination.
  • Eligibility: General protections apply to all employees, whereas unfair dismissal claims have specific eligibility criteria, such as the minimum employment period.
  • Legal Framework: General protections are enshrined in the Act and attract penalties when breached by an employer, while unfair dismissal claims are less serious as the focus is on the termination process.
  • Remedies: Remedies for general protections breaches can include compensation, reinstatement, and penalties for employers. Unfair dismissal remedies typically involve reinstatement or compensation for lost wages with a 26-week cap on remuneration.

The Fair Work Commission (FWC) is responsible for conciliating disputes for both general protections claims and unfair dismissal claims, providing a legal avenue for employees to seek redress if they believe they were discriminated against or if their termination was unfair.

An employee is required to choose between commencing a general protections claim or an unfair dismissal claim, they cannot do both. Is it vital for employees to consider their options carefully, as there are key differences between general protections and unfair dismissal as discussed above. For a general protections claim, the key factor is often whether the adverse action was due to a protected attribute or for another lawful reason. For an unfair dismissal claim, the key examination relates to whether the employer followed due process, provided valid reasons for termination, and offered the employee an opportunity to respond to allegations.

Recent Case Study

An employee filed an application in the Fair Work Commission for a general protections claim, arguing that the employee was terminated (adverse action) because of their protected attribute. The employer argued that the employee was terminated due to performance issues, and not based on the employee’s protected attribute. The employee could have commenced an unfair dismissal claim, arguing the dismissal was harsh, unjust, or unreasonable. Instead, the employee elected to commence a general protections application due to the broader remedies available, and achieved a successful outcome.

Conclusion

Understanding the differences between general protections and unfair dismissal is crucial for both employers and employees in Australia. General protections offer broad safeguards against discrimination and adverse action, while unfair dismissal focuses on the fairness of the termination process. By understanding these distinctions, employers can ensure compliance with their legal obligations, and employees can better protect their rights.

As the landscape of employment law continues to evolve, staying informed about these protections is essential for fostering fair and equitable workplaces. Whether you are an employer seeking to implement fair practices or an employee navigating workplace challenges, knowledge of general protections and unfair dismissal can empower you to make informed decisions and uphold your rights.

If you require further assistance or legal advice regarding an employment issue, contact us today so we can provide tailored guidance and support.

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