An employee who believes they have been unfairly dismissed is claiming that their employer ended their employment:

• without having a valid reason; and/or
• in a “harsh, unjust or unreasonable” manner; and
• did not do so because of “a genuine redundancy”.

Those working in a small business (less than 15 employees) may also claim the dismissal was not consistent with the Small Business Fair Dismissal Code.

Once dismissed, employees may alternatively apply to the Fair Work Commission through a general protections application, claiming the employee believes you, as the employer, took adverse action against them by:

• Ending their employment unfairly because they did, tried to, or planned to, exercise a workplace right (such as asking about their pay or working conditions or taking personal/carer’s leave);
• dismissed them for discriminatory reasons (race, sexual orientation, age, religion, etc); or
• dismissed them for exercising, or trying to exercise, their freedom of association (e.g. by joining a union or taking part in protected industrial action).

There is considerable overlap between unfair dismissal and general protections actions, but under the terms of the Fair Work Act 2009 a dismissed employee may choose only one, and any application must be filed with the Fair Work Commission within 21 days of dismissal.

Access to the unfair dismissal provisions is restricted by a number of jurisdictional limits. Firstly, it is not available to people earning over a certain wage threshold (From 1 July 2019 the amount is $148,700 per annum). This is why executives and senior managers who are dismissed will more likely avail themselves of general protections actions. Employees that have been employed less than six months (or one year in the case of small business employers) are also ineligible to claim unfair dismissal. The employee must also be dismissed in accordance with a specific statutory definition (“harsh, unjust or unreasonable”, described in s 387 of the Act), and is not available in the case of a “genuine redundancy” or to casual employees unless they have been engaged on a “regular and systematic basis”.

Employees who can make a general protections application are not as restricted as the unfair dismissal provisions, however, in contrast to unfair dismissal, each of the elements described above must be proved. This requires the employee to establish that they have a workplace right, and in relation to that workplace right, the employee has or has not exercised the workplace right or proposes to or not exercise the workplace right which results in the adverse action being taken by the employer.  It then shifts to the employer to show this was not the reason for the adverse action. If the employer can prove the proposed exercise of the workplace right or exercise of the workplace right was not in the “mind” of the decision maker at the time of the decision to dismiss, as a question of subjective fact, the employee’s case will fail.

When a dismissed employee makes an application for either unfair dismissal or general protections to the Fair Work Commission, employers then have the right to respond to the application, outlining why it objects to the application.

Thereafter a date will be set for a conference where a Commission conciliator will try to help both sides resolve their dispute without the need for a more formal court hearing. If the dispute cannot be resolved, and both sides agree, the Commission will hold a formal hearing and make a final decision about the matter.

If one or both sides do not agree that the Commission should make a decision, then the applicant may apply to the Federal Circuit Court or the Federal Court for a final decision.

Given that a dismissed employee needs to make an application for unfair dismissal or general protections within 21 days of their termination taking effect (which usually occurs on the last day the employee worked), employers need to be seeking considered legal advice to help clarify their position and to navigate how to best respond to such an application.