What’s the Difference Between Unfair Dismissal and General Protections Involving Dismissal?

This material is designed and intended to provide general information in summary form on legal topics, current at the time of publication, for general informational purposes only. This is not legal advice. 

Introduction 

As a worker, being dismissed can often feel unfair and/or harsh. The laws about termination of employment can be confusing, which can make the whole experience of being dismissed feel even worse.  

Although a dismissal can feel unfair, and many workers may have heard about ‘unfair dismissals’ as a legal remedy, not everyone is eligible to go through the Unfair Dismissal process under the Fair Work Act 2009 (Cth) (the Act).  

This factsheet aims to help workers understand the difference between the two most common dismissal claims under the Fair Work Act 2009 (Cth): (1) Unfair Dismissal and (2) General Protections involving dismissal. 

IMPORTANT: Under the Fair Work Act 2009 (Cth), if you are dismissed, you only have 21 days to dispute the dismissal, so you should seek legal advice as soon as possible. Contact the Working Women’s Centre SA on 08 8410 6499 to organise a legal advice appointment with one of our lawyers. 

Unfair Dismissal 

Under the Act, an Unfair Dismissal is when a worker is dismissed (ie the worker did not freely and voluntarily resign), and the dismissal was harsh, unjust or unreasonable. When judging if a dismissal was harsh, unjust or unreasonable, some factors that will be taken into account include: 

•  If there was a valid reason for dismissal 

• Eg not following lawful directions, poor performance, breaching policies 

• If the worker was notified or warned of that reason and was given a chance to respond before the dismissal 

• If the worker was able to bring a support person to any disciplinary meetings 

• If the size of the employer’s business could have impacted their ability to follow procedural fairness 

However, even if a dismissal is harsh, unjust or unreasonable, not all workers are eligible to make an Unfair Dismissal claim. To be eligible, a worker must have worked for the employer for a period of at least 6 months (if the business has 15 or more employees) or one year (if the business has less than 15 employees). If you are a casual worker, you need to show that you were working on a regular basis, which gave you a reasonable expectation of continuing to work in that way. 

Additionally, a worker must be covered by an Award or an Enterprise agreement, or earn less than the high income threshold. 

Unfortunately, we often see situations when even though a worker was dismissed unfairly or harshly, they are still not able to seek remedies under the Unfair Dismissal system because they do not meet the eligibility requirements (eg only worked for 3 months). In these situations, they might be eligible for another claim to dispute the dismissal. 

General Protections involving dismissals 

If you are dismissed, and you are not eligible for an unfair dismissal claim, you may have a General Protections involving dismissal claim. Unlike an unfair dismissal claim, there is no minimum employment period a worker must complete to be eligible to make a General Protections involving dismissal claim.  

Under the Act, general protections laws state that a person must not take harmful action (adverse action) against another person because the other person: 

• Has a workplace right, or 

• Has (or has not) exercised a workplace right, or 

• Plans (or not plans) to exercise a workplace right. 

A General Protections involving dismissal claim is when an employer dismisses a worker (ie takes adverse action against them) because the worker has exercised a workplace right or has the benefit of a workplace protection. For example, if a worker exercises their right to make a complaint or ask a question about their employment, and an employer dismisses the worker because of this, the worker can make a General Protections involving dismissal application to dispute this dismissal.  

Example 

Five months ago, Emilia started working as a Machine Operator at a mining site in Coober Pedy. They got along well with the other workers on the site, and never received any negative feedback from their supervisors. Last week, Emilia noticed that their most recent pay slip did not include the extra 7 hours they worked that fortnight. Emilia asked their supervisor, Matt, if this could be corrected. Matt said he would look into it. 

A few days later, Emilia was called into Matt’s office and given a letter. The letter informed Emilia that they did not pass their probation period, so their employment will be terminated. The letter also said Emilia will be paid one week’s pay in lieu of notice. 

In the above example, although Emilia was unfairly and harshly dismissed, without warning or a valid reason for dismissal, they are not able to make an Unfair Dismissal claim because they have not worked for the employer for at least six months. However, Emilia may be able to make a General Protections involving dismissal claim because they exercised their workplace right to question their pay, and then they were dismissed.    

If you have been dismissed and you are not sure whether you can make an Unfair Dismissal or General Protections involving dismissal claim, contact the Working Women’s Centre SA on 08 8410 6499 to organise a legal advice appointment with one of our lawyers.