Employees: be clear on what you’re applying for

When employees are dismissed they are sometimes faced with a choice of which type of claim applies to their circumstances for seeking a remedy under the Fair Work Act.

Have they been dismissed unfairly so as to be able to apply under Part 3-2 of the Act?

Have they been dismissed in contravention of their general protections so as to be able to apply under Part 3-1?

The choice is important. While section 586 of the Act allows corrections or amendments to be made to applications, the Full Bench of the Fair Work Commission has decided that the power to amend does not extend to converting a general protections application  into an unfair dismissal application: Ioannou v Northern Belting Services Pty Ltd [2014] FWCFB 6660.

An unfair dismissal application and a general protections application are meant for different circumstances even though they each may address that an employee has been dismissed. They are not interchangeable.

Once employees commence one type of application they cannot change midstream. They have to discontinue one application and then start the other if, after reflection or advice, they realise they have used the wrong application in the first place.

As 21 day time limits apply to both unfair dismissal applications and general protection applications (where a dismissal has occurred) the consequences for employees not getting it right at the start can be far reaching.

The lesson for employees is to be clear on what they are applying for.  If they are not clear they should seek advice so that they choose the application that suits the circumstances of their dismissal.

For further questions about employment or workplace relations, please contact our specialist employment and workplace relations law team.