In recent years, those aggrieved by their dismissal from work have focused on bringing unfair dismissal claims, seeking compensation and potential reinstatement. The reality, however, is that many people are excluded from bringing an unfair dismissal claim – for example if their period of service is too short, if their annual earnings exceed the applicable threshold, or if their employer has protection by virtue of the Small Business Fair Dismissal Code. What alternatives are there when an unfair dismissal claim is not available as a remedy?
Atkinson Vinden is seeing significant growth in the area of General Protections claims as an alternative to unfair dismissal, and we thought it best to shed some light on this increasingly important area of law.
The General Protections jurisdiction is built around the idea that employees (and in some cases independent contractors) have workplace rights. Those rights may arise under the Fair Work Act itself, or an applicable Award, Enterprise Agreement, or even under an order of a court. It also covers complaints made in the workplace. In relation to any of these matters, if an employee is treated adversely for insisting on their workplace rights (or even if for not exercising their workplace rights), they may have a claim. In the context of dismissal, common examples include where a person is sacked for insisting on their annual leave or parental leave rights, payment of their superannuation, or perhaps for lodging a complaint about the conduct of others in the workplace.
Workplace rights that purely arise under the terms of an employment contract are excluded from this jurisdiction, and so if a person was dismissed for pressing for payment of a commission, for example, this would almost certainly fall outside of the scope of this type of claim. The person could still sue in contract for payment of their commission, but they would not be able to do this through a General Protections claim.
A good example of this type of case in action was the 2018 decision of Fatourous v Broadreach Services Pty Ltd. In this matter, a senior project manager in an IT systems engineering company complained internally about a subcontractor not being paid for work performed. In one email, Mr Fatourous complained that the CEO of Broadreach Services was not “acting in the highest and best interests of the company” by failing to pay the sub-contractor. This apparently did not go down well with the aforementioned CEO, leading to Mr Fatourous’ dismissal. Fatourous was successful in demonstrating that his treatment satisfied the general protections jurisdiction, in that he was treated adversely (dismissed) because of the making of an internal complaint about his concerns about potentially illegal actions of the company matter. The Federal Circuit Court took a particularly dim view of these events, ordering the company pay a civil penalty of $12,500, as well as an order to pay Mr Fatourous a total of over $144,000 for 8 months’ loss of salary and superannuation benefits, together with interest.
Some cautionary principles arise. If you are an employer, it is important to be aware that even if an employee is ineligible to bring an unfair dismissal claim, do not presume that the company is immune from any action. Consider whether the chain of circumstances might enliven the general protections area. Likewise, any employees who can demonstrate adverse treatment under these principles likely have a claim. For General Protections claims involving a dismissal, there is a 21 day time limit to commence proceedings, but for non-terminations related issues that time limit does not apply, and a claim can be brought much later, providing a significant opportunity to employers to “have their day in court” if they so wish.