Dismissed Employees – Choose Wisely

Employees who believe that they have been wrongfully dismissed have several options and choosing the right one is important. Deciding to challenge the termination of your employment is demanding at the best of times and obtaining the right advice regarding your options is important. As well as alleviating the burdens associated with challenging the termination of your employment, obtaining proper guidance can save you time and money in the long term.

Ioannou v Northern Belting Services Pty Ltd

In the recent decision of Ioannou v Northern Belting Services Pty Ltd [2014], the Fair Work Commission held that the Fair Work Act 2009 (the Act) cannot be used to convert an unfair dismissal claim into a general protections claim. The applicant was ordered to withdraw their unfair dismissal application and file a new general protections claim.

Overall the Fair Work Commission decided that their power to correct and amend applications and documents for individuals does not extend to changing an unfair dismissal claim into a general protections claim. Even if not intended, such action has the potential allow an individual to by-pass the proper application processes as required by the Act.

Allowing an unfair dismissal claim to be converted to a general protections claim would also infringe on the Act’s provisions which prevent a general protections claim where an unfair dismissal claim is made.

Making the appropriate application is a vital step in saving time and avoiding unnecessary complications. Although the same conduct towards an employee may give rise to both an unfair dismissal claim and an adverse action claim, they offer the employee distinct options as the nature and possible remedies of the claims fundamentally differ.

General Protections Claim

  •  Contains civil remedy provisions which may result in penalties being imposed on the employer;
  • The Onus of proof is on the employer to provide the adverse action was not taken for a prohibited reason; and
  • Remedy can include uncapped compensation.

Unfair Dismissal Claim

  • Employee retains entire onus of proof
  • Remedy of compensation capped at 6 months
  • Reinstatement is possible

For a terminated employee, pursuing the right option involves an assessment of the facts, the nature of the claim and the appropriate remedy for the individual. Strict time limits apply to making a claim and advice should be sought as early as possible. If you would like further advice on the termination of your employment or you believe that your employment rights are being infringed, contact Griffin Legal.

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