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Dismissed: can an injured worker take multiple actions?

What factors an employee would consider when deciding which action to pursue?
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Dismissed: can an injured worker take multiple actions?

Dismissed: can an injured worker take multiple actions?

21 July 2020

By Paul Munro

Unfair dismissal is the most common method pursued by a dismissed employee, however there is an increasing number of “general protection” claims.

This article looks at what factors an employee would consider when deciding which action to pursue if the reason for dismissal was due to an illness or injury that was not work-related.

​An employee who has been dismissed due to personal illness or injury can pursue relief through four possible avenues, depending on his/her individual circumstances:

  • unfair dismissal (subject to certain eligibility rules) under the Fair Work Act
  • general protections under the Fair Work Act
  • discrimination under the relevant federal, state or territory equal opportunity legislation
  • under common law for breach of contract.

The two areas most accessed by employees are claims for unfair dismissal and adverse action applications under general protections provisions.

Multiple actions

An employee needs to decide which remedy to pursue: multiple actions for the same conduct are not allowed. This is intended to prevent a person “double-dipping” when they have multiple potential remedies. This would include a complaint to the relevant ant-discrimination tribunal. In all cases the anti-double-dipping provisions will not apply where the initial application has been withdrawn, or failed for want of jurisdiction. The subsequent application must be made within 21 days after the dismissal took effect.

In determining which avenue to pursue, an employee will take into account the potential remedies available if he or she is successful.

Unfair dismissal claim

While unfair dismissal is the most common claim made to the Fair Work Commission, access is restricted to certain employees. Employees who are ineligible to claim unfair dismissal include:
  • an employee who has served less than the relevant minimum period of employment (six months, or 12 months where an employer employs fewer than 15 employees)
  • is award/agreement-free and whose annual rate of earnings exceeds the high income threshold (currently $153,600 pa. from 1 July 2020)
  • where the reason for the dismissal was a case of genuine redundancy, or
  • an employee who is pursuing other termination of employment proceedings.

If an employee is eligible to claim unfair dismissal, there are a number of considerations which may be taken into account to determine which course of action is taken. These may include:
  • the maximum amount of compensation which may be awarded in an unfair dismissal claim is based on the equivalent of six months’ ordinary earnings (up to a maximum of $71,000)
  • the Fair Work Commission is not a court, consequently legal costs may be less than for an adverse action claim. Also, many applicants in unfair dismissal matters represent themselves.

The onus is on the applicant in an unfair dismissal matter to prove the dismissal was harsh, unjust or unreasonable and the reason for the dismissal was invalid. Most of the unfair dismissal applications heard by the Fair Work Commission are mediated and settled prior to arbitration.

Adverse action – general protection provisions

General protection applications relate to adverse action taken by a person against another person, in relation to the workplace. The general protections provisions of the Fair Work Act deal with:
  • the protection of workplace rights and the exercise of those rights
  • the protection of freedom of association and involvement in lawful industrial activities
  • providing protection from discrimination (which overlap with discrimination laws), and
  • sham arrangements.

The most common ‘adverse action’ by an employer is dismissal, although such action can also include:
  • injuring the employee in his or her employment or altering the position of the employee to his or her prejudice
  • discriminating between the employee and another employee
  • refusing to employ the prospective employee, or
  • discriminating against the prospective employee in the terms or conditions on which the prospective employer offers to employ the prospective employee.

Examples include demotion or being overlooked for promotion because of the employee’s legitimate activities at work.

The most common allegation regarding adverse action is that the dismissal was based on discriminatory grounds, the dismissal was due to an employee’s temporary absence due to illness or injury, or the employee was dismissed or victimised for exercising a workplace right.

For example, the Fair Work Ombudsman has successfully prosecuted employers in relation to discrimination against employees returning from parental leave, resulting in significant fines, the payment of compensation and the imposition of enforceable undertakings.

What is the difference between the two types of claim?

There are a number of reasons why adverse action claims potentially present a greater problem for employers than unfair dismissal claims.

The main reasons why a dismissed employee may pursue an adverse action claim rather than an unfair dismissal claim include:
  • a wider jurisdiction – adverse action applications are open to prospective and current employees as well as contractors and other workers
  • there is no minimum period of employment required to be served to access this jurisdiction
  • general protections provide broader remedies including injunctions
  • while time limits for lodging claims are the same as for unfair dismissal, damages are uncapped (capped at six months’ pay or $76,800 for unfair dismissal applications) and
  • there is a reverse onus of proof under general protections applications which means the employer is effectively guilty until proven otherwise.

As adverse action applications are eventually heard before a court, legal costs for proceedings may be a consideration for an applicant, although there have been instances of self-representation before the Federal Circuit Court.

However, from an employer’s perspective, the cost and difficulty of defending general protections claims is largely caused by the reverse onus provision.

What does this mean for employers?

Employers need to be scrupulous in following their HR policies. The aim is to avoid an adverse action or unfair dismissal application. Note that the standard of proof used by courts and tribunals in dismissal cases is the balance of probabilities. The more serious the allegations are, the more certain you need to be that the conduct occurred. This is particularly the case with adverse action claims, with the reverse onus of proof.

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