Menu
Click-To-Call: 1300 253 203

News

Have You Been Dismissed At Work? If So, Ensure You Choose The Right Claim For Your Situation

Unfair Dismissal From Work

Most people are familiar with the term, “unfair dismissal”, however, increasingly, employees are lodging general protections disputes involving dismissals as an alternative to pursuing an unfair dismissal claim.

There are a number of benefits to employees in doing so.

1. Employees can often claim greater amounts of compensation, as there can be tax benefits in doing so and there are more heads of compensation for such claims

Table 1 – Comparison of compensation claimable in an unfair dismissal compared with a general protections dispute

COMPENSATION TYPE

UNFAIR DISMISSAL

GENERAL PROTECTIONS DISPUTE INVOLVING DISMISSAL

Current loss of income

Yes

Yes

Anticipated future loss of income

Yes

Yes

General damages for hurt, humiliation and distress experienced by the applicant

Not applicable

Yes

Current medical expenses and anticipated future medical expenses

Not applicable

Yes

Cap on compensation

The limit is 6 months’ pay or half the amount of the ‘high income threshold’ immediately before the dismissal.

There is no limit on the amount of compensation.

Monetary penalties

Not applicable

The Court may order that the employer pay a monetary penalty (as at 26 September 2017, $63,000 for a corporation and $12,600 for an individual) be paid to you, as the aggrieved employee, but beware, this penalty may be payable to a particular organisation or the government, there are no guarantees it will be awarded to you. 

General stance on compensation

Compensation is a narrow concept and does not include compensation for shock, distress or humiliation, or other analogous hurt, caused by the manner of the person’s dismissal.

Compensation is a broad concept.

2. A general protections dispute can be combined with an unpaid wages claim and be heard in the same jurisdiction if, and when the matter goes to Court. 

This has the added benefit of being more cost effective.

Conversely, an unfair dismissal claim is heard by the Fair Work Commission and then you would have to pursue an unpaid wages claim in a different jurisdiction - the Federal Circuit Court of Australia or the Federal Court of Australia.

3. In contrast to unfair dismissals, it is the employer, rather than the employee, which must demonstrate that the dismissal has occurred for reasons other than the reasons prohibited by the general protections provisions of the Fair Work Act.

This is because there is a reverse onus of proof in general protections disputes involving dismissal. 

We suggest that you give a high degree of consideration to what quantum you are seeking to recover before you choose any legal course of action. 

We do caution you that you must have sufficient grounds for bringing a general protections claims as the grounds to prove are very different in this type of claim compared with an unfair dismissal claim.

We hope the above information is of assistance to you.  Please note that the above information is only relevant to employees of organisations other than local councils and State Governments.

If you believe you may have a claim you should talk to us about your options as soon as possible.