If an employee has had their employment terminated, an employee can commence various claims arising from the dismissal, including a general protections claim (also known as an adverse action claim), an unfair dismissal claim, or a discrimination claim. This article explores the advantages of commencing a general protections claim over an unfair dismissal claim. Section 725 of the Fair Work Act 2009 specifies that a person must not commence, among other things, a general protections claim and an unfair dismissal claim at the same time. This forces a dismissed employee to choose one or the other. We often advise dismissed employees who have the option of making both claims. If you are faced with the choice of commencing both an unfair dismissal claim and general protections claim, which one do you choose?Generally speaking, it is more advantageous to commence a general protections claim for the reasons mentioned below. No Compensation Cap A general protections claim does not have a limit on the amount of money that a person can receive if successful in their claim. While an unfair dismissal claim does have a maximum compensation cap of six months’ salary or wages, provided the amount is no more than 50% of the high-income threshold (which from1 July 2016 is $138,900); therefore the maximum compensation in unfair dismissal claims is $69,450. Generally, the losses that an employee suffers arising from dismissal include lost income during periods of unemployment, lost income arising from missing out on future promotion opportunities, and losses arising from accepting an alternative lower-paying position found after dismissal. Under the unfair dismissal system, a dismissed employee often misses out on recovering all these losses. Under the general protections system, a dismissed employee can recover their entire lost income losses without it generally being reduced. Statistically, damages for general protections claims are higher than for unfair dismissal claims. No Onerous Prerequisites Unfair dismissal laws have certain qualifying provisions which must occur before the dismissed employee has a right to lodge an unfair dismissal claim. The first such prerequisite includes a minimum period of service, which is either six months or 12 months, depending on how many employees a business has. The second prerequisite is that the employee cannot earn more than the high-income threshold(which from 1 July 2016 is $138,900) unless the employeeis covered by modern award or enterprise bargaining agreement. Thirdly, independent contractors do not have the right to lodge an unfair dismissal claim, whereas independent contractors do have the right to lodge a general protections complaint.
Fourthly, casual employees do not have the right to lodge an unfair dismissal claim unless they worked on a regular and systematic basis,whereas casual employees do have the right to lodgea general protections claim, irrespective of whether they worked on a regular and systematic basis or not. The above restrictions do not apply to general protections complaints and, therefore, the general protections system is open to more people than the unfair dismissal system. You Can Recover Penalties Under the unfair dismissal system, a successful employee is only entitled to compensation at the above capped amount, and also to reinstatement in limited circumstances. Under the general protections provisions, a successful litigant is entitled to compensation as well as the ability to have civil penalties imposed against the business. A civil penalty is a further payment that the business is required to pay as a penalty for their breach of the general protections laws. The current maximum penalties are $54,000 for corporationsand$10,800 for individuals. This penaltiesapply for each breach. This penalty is usually paid to the person who succeeds in the claim. There are no such penalties available in the unfair dismissal system. You Can Claim Damages for Distress, Anxiety and Depression Under the unfair dismissal system, a successful litigant cannot recover compensation for their hurt feelings, anxiety, humiliation, or depression which arose from the dismissal. Under the general protections system, a successful litigant can recover these types of damages. We often see employees experiencing anxiety, depression, and stress because of the manner in which they were dismissed. The Reversal of the Onus of Proof Under the unfair dismissal laws, an employee has the responsibility of proving their case. The employee has the ‘burden of the proof’. Under the general protections laws, provided the person commencing the claim raises some preliminaryfacts to support their claim, the business has the burden of proving that they did not breach the general protections laws. Therefore, the responsibility of proving the case rests on the business and not on the person commencing the claim. This is an advantage in litigation because if the business is not able to discharge their burden of proof, the person commencing the claim will be successful. Please contact our general protections claims lawyers if you have any questions about this article.