General protections with dismissal

General Protections with dismissal is a matter where your employer has dismissed for a prohibited reasons. There are many 'prohibited reasons' employers cannot take 'adverse action' against an employee. ​

Adverse action: 

Adverse action is when someone acts, plans or threatens to:

• dismiss an employee

• injure an employee in their employment

• harm an employee by changing their job, for example by cutting shifts or hours

• discriminate between employees

• not hire someone

• offer a potential employee different (unfair) terms and conditions compared to other employees

• end or refuse to enter into a contract with an independent contractor

• take industrial action against their employer.

The full list of adverse actions is in section 342 of the Fair Work Act.

Not all harmful action is 'adverse' action. Someone can take action for genuine reasons. For example, an employer is not taking adverse action when they:

• offer a lower salary to a job applicant because they have less experience

• decide not to hire a potential employee because they do not have a driver’s licence and the job requires a licence

• make a person’s role genuinely redundant.

Prohibited reasons:

Extended sick leave:

Employees may be able to apply if they are fired because they are temporarily away from work while sick or injured. You may be eligible to apply for general protections dismissal if this happens to you. Learn more on the long periods of sick leave  section of the Fair Work Ombudsman website.

Workplace rights:

You may be able to apply under the general protections if adverse action has been taken against you:

• because you have a workplace right

• because you used a workplace right

• because you say you will use a workplace right

• to stop you using a workplace right

• because another person says they will use a workplace right for your benefit.

See section 340 of the Fair Work Act 2009.

Having 'workplace right' sometimes relies on a 'workplace instrument'. This is where the fact Queensland coal miners having rights to certain benefits under the Coal Mining Safety and Health Act 1999 can be relevant. While the Coal Mining Safety and Health Act 1999 might not give you a direct workplace right (as defined under the Fair Work Act), it does provides you the benefit of a workplace instrument which then empowers your workplace right. 

Discrimination:

The law protects employees and potential employees from discrimination at work. You may be able to apply under the general protections if your employer takes adverse action against you because of your features (attributes). See Fair Work's Discrimination page for more information.

An employer may break general protections laws if they:

• dismiss an employee because of their features or attributes

• don't hire someone because of their features or attributes

• treat a person differently to others because of their features or attributes

• offer an employee worse terms than other employees because of their features or attributes

• don't give a worker their legal entitlements because of their features or attributes

• change an employee’s job in a way that has a negative effect because of their features or attributes

• take or threaten to take adverse action to force an employee to do something because of their features or attributes.

The word ‘because’ is important in a dispute or case about general protections.

Industrial activities:

The law protects your right to participate (or not participate) in industrial activities. You can choose to be involved (or not involved) in an industrial association. This includes unions and employer associations. You may be able to apply under general protections laws if a person:

• takes adverse action because a person is (or is not) involved in industrial activities (see below)

• coerces another person to be involved in industrial activity

• makes misrepresentations about a persons

  • obligation to engage in industrial activity

  • obligation to disclose information about membership to an industrial association

  • obligation to disclose information about engaging in industrial activities

• induces their employees to become a member of an industrial association

• induces their employees to stop being a member of an industrial association.

Industrial activities include:

• being a member of an industrial association

• becoming involved in establishing a union or employer association

• organising or promoting lawful activities of a union or employer association

• encouraging participation in a lawful activity for a union or employer association

• complying with a legal request made by a union or employer association

• representing the views, claims or interests of a union or employer association

• paying a fee to a union or employer association

• seeking to be represented a union or employer association.

You can read more about prohibited reasons here.