Unfair dismissal and general protections claims before the Fair Work Commission (FWC) are common, with around 18,000 claims lodged in the past financial year.

Australian employees have various rights and protections enshrined in both federal and state legislation.

Determining what action to take for an employee – especially dismissal – needs to be considered carefully, factoring in their circumstances.

This article will compare and contrast the FWC’s two most common employment claims, unfair dismissal and general protections, and how the Victorian Chamber’s Workplace Relations Team can help prevent or respond to any potential employment claims.

Unfair dismissal and general protections

An Unfair Dismissal claim arises when an employee’s employment is terminated in a way that is considered harsh, unjust, or unreasonable. The Fair Work Act 2009 (the Act) provides protections for dismissals in this manner and can make an employer liable to compensate or reinstate the employee.

Unfair dismissal claims can be broken down into two criteria – did the employer have a valid reason to dismiss an employee, and was that employee afforded a fair process in determining that reason and ending their employment?

As of May 2023, the cap for compensation for unfairly dismissing an employee is $76,800.

A General Protections claim is designed to ensure employees are not subjected to adverse action or treatment because of a protected attribute or workplace right they may or may not have exercised during their employment.

General protections claims are particularly nuanced because they don’t require an employee to be dismissed. Adverse action can look like any kind of management decision, disciplinary action or even inaction, so long as the employee can link it to a workplace right or protected attribute.

Importantly, the onus of proof is on the employer to demonstrate that any adverse action was not because of the reason claimed by the employee. General protections compensation is also potentially uncapped.

Unfair dismissal and general protections differ significantly in their legal considerations. Simply put, unfair dismissal is about the process behind determining dismissal for an employee and whether it was the right outcome, and general protections are about ascertaining an employer’s reason for taking action against an employee and whether that action has anything to do with an employee exercising a right or protection afforded under the Act.

Practical tips to avoid employment claims

While an employee’s reactions to a decision cannot be controlled, there are steps employers can take to mitigate the risk of litigation and be in a more defensible position if a claim arises.

Clearly identify a reason for the action

Although unfair dismissal and general protections claims differ in their importance over adopting a fair process as a legal consideration, they share a common thread in that employers need to be able to demonstrate a reason for action – dismissal or otherwise.

Taking clear file notes of conversations held internally and keeping records of emails are good first steps to ascertain a reason for the decision at the time. These records can serve as evidence in case a claim arises.

Consider your employee’s feedback carefully

Ending an individual’s employment should always be considered as a last resort when there are no reasonable alternatives (or even when there is good reason).

There may be external factors within an employee’s personal life or in the workplace that outweigh the validity of dismissal or action.

Allow your employees time to understand your position, the reasons behind your decisions, and give them an opportunity to provide feedback and potentially influence your decision.

How the Chamber can help

The Victorian Chamber has a team of Workplace Relations and Health, Safety and Wellbeing Advisors and Consultants with a wealth of experience to deliver the best outcomes for members.

Whether it’s managing a difficult situation with an employee, stress testing a process or representing you if one of the above employment claims arises, our experienced Consultants are here to help.

For more information on how the Victorian Chamber can support your business or to access our consulting services call us today on (03) 8662 5222.