Home' Executive Employment Contracts : Issue 1 Contents 39
C. Discrimination grounds
The Fair Work Act also says that an employer must not take adverse
action against an executive because of his or her race, colour, sex, sexual
preference, age, physical or mental disability, marital status, family or carer’s
responsibilities, pregnancy, religion, political opinion, national extraction or
What is the process and possible remedies?
An executive who alleges that they have been dismissed in breach of
the general protections provisions may make an application to Fair Work
Australia or a court at first instance following the dismissal.
Remedies for breach of the general protections provisions include, but
are not limited to, reinstatement and compensation. Compensation for
breach of the general protections provisions is uncapped and may include
compensation for hurt and humiliation suffered by the executive as a result
of their dismissal.
The general protections provisions under the Fair Work Act also allow
executives to obtain an injunction from a court to prevent their employer from
dismissing them unlawfully.
The general protections provisions are civil remedy provisions to which
pecuniary penalties may attach in the event of a breach.
► a modern award or enterprise agreement apply to the employment of the
► the executive earns less than the high income threshold (which is indexed
annually and is currently $133,000 pa);
then the executive will be able to access the unfair dismissal jurisdiction
under the Fair Work Act.
Employers must therefore ensure not only that they have a valid reason for
terminating the executive, but that they provide the executive with procedural
fairness throughout the termination process. This is critical in order to
prevent incurring liability for unfairly dismissing the executive on the basis
that the dismissal was harsh, unjust or unreasonable.
Remedies available in successful unfair dismissal claims include
reinstatement or compensation in lieu of reinstatement (up to 26 weeks’
remuneration), capped at half the higher income threshold. In most cases,
executives will be precluded from making an unfair dismissal claim as they
usually earn above the high income threshold and are not covered by an
enterprise agreement or modern award. Nevertheless, you should confirm
that the executive is eligible to make an unfair dismissal claim before you
start the process of terminating his or her employment.
litigation under state laws and unlawful termination
under the fair Work act
Some State industrial laws have preserved special rights that are able to
be litigated in State industrial tribunals and courts. For example, in Western
Australia an executive of a partnership (that is, a true partnership that is not
incorporated) may have a right to pursue a claim in the Western Australian
Industrial Relations Court. In the vast majority of cases executives will not be
covered by state industrial laws.
It is also possible for a unlawful termination claim to be made under the Fair
Work Act, but this claim is reserved only for executives that are not employed
by companies (eg. a partnership). Unlawful termination largely replicates
the general protection provisions outlined above, except that such a claim is
reserved for termination only (and not other types of adverse action).
equal opportunity claims
Executives are afforded the same protections from discriminatory conduct
under the Fair Work Act or Commonwealth and State anti-discrimination
laws as less senior employees.
In summary, under the Fair Work Act and Commonwealth and State anti-
discrimination laws it is unlawful to terminate an executive’s employment
on the basis that the executive has an “attribute” that is protected by those
laws. The list of protected “attributes” varies between the different State
and Commonwealth anti-discrimination jurisdictions, but commonly include
attributes such as age, race, sex and marital status. Equal opportunity claims
are first dealt with by specialist equal opportunity tribunals, rather than
by Fair Work Australia, and are referred to a State or Federal Court if the
specialist tribunal is not able to successfully conciliate the matter.
Both “direct” and “indirect” discrimination are prohibited. “Direct”
discrimination occurs where, for example, an executive is terminated
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