The dissolution of an employment relationship is a complex process for everyone involved, especially if it involves violations of the Fair Work Act 2009 (Cth) – “the Act”. Frequently, the same set of circumstances could justify both a General Protections and an Unfair Dismissal claim, leading claimants to grapple with the optimal approach.
There are several considerations to bear in mind while making this decision:
1. Size of the Employer’s Business: If your employer is a “Small Business” (having 15 or fewer employees), filing an Unfair Dismissal claim could be challenging due to the additional protections these businesses enjoy under the Act.
2. Nature of the Employment Relationship: Unfair Dismissal laws apply only to employees, not independent contractors.
3. Minimum Employment Period: An Unfair Dismissal claim requires a minimum employment period of 12 months for small businesses and 6 months for larger ones.
4. Employee Income: There is an income threshold (subject to periodic adjustments) for launching an Unfair Dismissal claim. This cap does not apply to General Protections legislation.
5. Case-Specific Facts: Are the circumstances more aligned with the definition of Unfair Dismissal or General Protections?
It’s also vital to consider statutory damages limitations and the distinct processes for each type of claim.
Engaging a professional to navigate this complex terrain is advisable for improving your success chances. The choice between Unfair Dismissal and General Protections applications is pivotal, as per section 725 of the Act, you cannot pursue both simultaneously. Once chosen, you can’t switch from one type of application to the other.
With an expert lawyer evaluating your case and presenting the best strategic alternatives, you can make an informed decision about the most likely path to a successful outcome.
Pitfalls of Self-Representation: Self-represented litigants face challenges due to the potential lack of clarity about their options and the most beneficial process for their claim. Inexperience can lead to suboptimal choices, potentially undermining success prospects.
Adding to the complexity is a 21-day limitation period for lodging a claim, starting from the termination date – underscoring the saying, ‘time is of the essence’.
A case that underlines the importance of choosing the right action from the start is Peter Ioannou v Northern Belting Services Pty Ltd. Here, the Applicant sought to change their application from an Unfair Dismissal claim to a General Protections claim under the Act. The Full Bench denied this request, emphasizing that these are distinct, non-interchangeable processes. Once lodged under one section, a claim must stay within that same process.
Understanding these nuances can significantly impact the outcome of your case, reinforcing the value of professional legal advice in navigating employment terminations under the Act.