In its annual report for the 2014/15 financial year, the Fair Work Commission notes that General Protections (Adverse Action) applications involving dismissal lodged in the Fair Work Commission have increased by 17.5% over the previous year.  This follows an increase of 18.5 per cent from 2012–13 to 2013–14.

• having or exercising a workplace right

• freedom of association

• engaging in industrial activity

• workplace discrimination

An employee who has been dismissed and is prevented from making an unfair dismissal claim because he or she has not served the minimum employment period, is not covered by an award or enterprise agreement and earns over the high income threshold or who has been made genuinely redundant for example may still make a general protections claim.  Also, unlike the unfair dismissal jurisdiction where compensation is capped at 26 weeks pay, or half the high income threshold ($66,850) whichever is the lower, the compensation that may be awarded in a successful general protections claim is uncapped.

An employee will have a general protections case if they can show that they have been dismissed (or otherwise been treated adversely) and that that they fall within one or more of the reasons noted above.  The onus then falls on the employer to show that the reason or reasons for the employee’s dismissal (or other adverse action) did not include one of those reasons. A dismissed employee has 21 days from the date of dismissal to make either a general protections claim or an unfair dismissal claim.

For further information, please contact Gordon Jervis on 02 9744 1099 or email gordon.jervis@neca.asn.au.