Unfair Dismissal vs General Protections  – What’s the Difference and Which is Better?

After a bit of digging, many aggrieved ex-employees realise that there are two potential legal avenues to pursue their employment concerns – unfair dismissal and general protection claims. Unfortunately, the decision about which direction to take can often be confusing. This isn’t exactly great when you might have time-sensitive decisions to make, so in this article we’re going to look at unfair dismissal vs general protections and set out the differences, overlaps and pros and cons of each option.

A Quick Summary of Unfair Dismissal and General Protections

We’ve got a more detailed article about unfair dismissal here and a more detailed article about general protections here.

So while you should definitely take a look at those, here are the main features of each in a nutshell:

1. An Unfair Dismissal claim is where you say that your termination was harsh, unjust or unreasonable. You need to have been an employee for at least 6 months, and you either need to earn under the relevant high income threshold or be covered by a Modern Award or Enterprise Agreement, and there are various limits on the types of compensation or remedy you can seek.
2. A General protections claim is where you say that the reason for dismissal was because you exercised your workplace rights, or because you were temporarily sick and unable to work, or because you were discriminated against on the basis ofa “protected” attribute. You do not need to have been dismissed to pursue a general protections claim, although the more common claims tend to include termination of employment as a form of adverse action. There are no minimum employment periods required to bring a general protection claim and it doesn’t matter what your income is There are a wider range of remedies you can ask for.

The Threshold Question – Are you Eligible to Make an Unfair Dismissal Claim

Now we admit this is pretty obvious, but the first place to start is to figure out whether the choice actually exists.

So, for example, if you haven’t been employed for 6 months or more, you probably won’t be eligible to even consider bringing an unfair dismissal claim.

And, of course, if you haven’t been dismissed (a term which includes constructive dismissal that we discuss here), there’s no unfair dismissal.

If unfair dismissal isn’t an option, you shouldn’t forget that a general protections claim may be still be an option.

With that said, let’s move on.

The Similarities in Unfair Dismissal and General Protections

In terms of process, unfair dismissal and general protections follow a similar path.

Both involve making an application to the Fair Work Commission.

Both will involve your employer having an opportunity to respond.

And both will involve a conference coordinated by the Commission to see if the matter can be resolved rather than progressing to trial.

If the general protections claim involves termination of employment, then both the unfair dismissal claim and general protections claim share the same deadline of 21 days – that is, you must file your claim within 21 days of the termination taking effect.

General Protections can be a Bit Harder

General protections usually comes with a higher burden to prove up your case than unfair dismissal.

What do we mean by that?

With unfair dismissal, there are really two main questions to be answered: whether the dismissal was for a valid reason, and whether the dismissal was “harsh, unjust or unreasonable”.

While some cases of unfair dismissal can get complicated, as a general rule digging into these two questions doesn’t usually require an enormous amount of time in terms of affidavits and evidence. There are limited questions to ask and a fairly well-established line of tests to apply to any given circumstance.

General protections, however, offers a more comprehensive potential range of issues that might need exploring.

Because general protections laws relate to your fundamental rights as an employee, the enquiries that might need to be made and the likely evidence that could be presented can balloon out. Let’s take a look at an example.

Passed Over Because Of Illness

So let’s say you are coming up to the point where a promotion might be in order.

Unfortunately, you get a bout of Ross River fever and must miss a decent chunk of work. You have sufficient leave saved up so there’s no issue there.

But you’re passed over for the promotion.

On one view, you might decide this is adverse action in response to taking entirely lawful leave for a lawful reason (illness).

But let’s think about what kind of evidence we might need from both the employee’s and employer’s perspectives. For this example we’re going to gloss over precisely who has to prove what and just look at how wide a net you might need to cast.

For you as an employee, you’ll probably want to think about what evidence you can lead that would suggest:

1. you were eligible for the promotion;
2. you would have received the promotion had you been at work instead of on leave;
3. that there were no other viable reasons you would not have received the promotion;
4. how it is you say that the failure to get the promotion was adverse action in response to your illness and associated leave.

The employer is going to be looking at evidence that demonstrates:

1. your lack of eligibility for the promotion;
2. the process on which promotions are decided;
3. the reasons that you were not given the promotion (that do not relate to your illness);
4. your continued lack of eligibility for promotion.

These might seem like fairly simple lists, but consider how complicated it might get to assess all of the possible promotion criteria, get input and affidavits from multiple individuals (some of whom are your colleagues at work!) and weave them into a cohesive story.

In short – it’s not that easy, even for what sounds like a reasonably straightforward claim. This is why an employment lawyer is essential for this kind of claim.

What’s the Difference in Potential Compensation for Unfair Dismissal vs General Protections claims?

Unfair dismissal claims have some significant limits on compensation. That means you can only be awarded:

1. reinstatement of your job in appropriate circumstances (and backpay if applicable);
2. compensation capped at a maximum of the equivalent of 6 months’ wages.

General protections claims have no such limits. That means you might be able to claim such things as:

1. compensation exceeding the equivalent of 6 months’ wages;
2. compensation for non-economic factors like humiliation, distress or similar.

Of course while it’s tempting to look at non-economic factors as a ground for making a larger claim,  you would need to take careful legal advice on specifically whether those issues realistically result in any ability to claim against your ex-employer. Being upset or embarrassed by your termination does not automatically lead to a potential money claim and should not push you towards a general protections claim without advice about the likely prospects.

You can also ask the Commission to impose monetary penalties on your (ex) employer.

Can I Run Both Unfair Dismissal And General Protections at the Same Time?

No, you cannot simultaneously pursue an unfair dismissal case and general protections claim at the same time.

How Do you Decide Whether to Go for Unfair Dismissal or General Protections?

You’re going to find considerable overlap between general protections and unfair dismissal because they tend to arise out of the same set of facts.

So in any given case where your employment has been terminated, you might be able to theoretically pursue either.

The most important thing here is to get advice early. When you’re dismissed, you have 21 days to bring your claim, whether it’s unfair dismissal or general protections – and you don’t want to be asking your employment lawyer for complex advice on day 20!

Practically speaking, one good way to decide which path to take is to look at what remedy you can realistically seek. You should also consider how strong your arguments are and whether they meet the relevant tests for an unfair dismissal vs general protections claim. Finally, you need to consider what your ultimate objective is.

If you want/need a remedy that goes beyond what an unfair dismissal claim can offer, you might need to consider a general protections claim.

Of course it’s pretty complicated, so best to decide with legal advice about which offers the greatest chance of a good outcome.

Get in touch if you need to consider either an unfair dismissal case or a general protections case and we’ll be happy to help.