Reducing the Risk of General Protections Claims

Peta Tumpey & Rae Mozejko , 20 July 2015

The Fair Work Act 2009 contains a range of general protections available to employees against conduct that is discriminatory, unfair or unlawful. Peta Tumpey and Rae Mozejko, of TressCox Lawyers, set out what the general protections are and what employers can do to avoid claims being made in this jurisdiction.

What are the General Protections?

The general protections contained in the Fair Work Act (Cth) protect an employee’s workplace rights and freedom of association and provide protection and effective relief for people who have been discriminated against, victimised or have experienced unfair treatment in the workplace. Pursuant to the Fair Work Act, it is unlawful to take ‘adverse action’ against a person because they have a workplace right, have exercised a workplace right, or propose to exercise a workplace right.

A workplace right includes receiving a benefit or having a role or responsibility under a workplace law, instrument or order, commencing or participating in a process under a workplace law, instrument or order, or being able to make a complaint or inquiry about ones’ employment. Examples of employee benefits in this context include entitlements to annual leave, personal carers leave, the right to be absent from work during parental leave and the right to be represented for the purposes of negotiating a new agreement.

Examples of an employee’s role or responsibility include the role of supporting an individual who is pursuing a grievance claim and the role of ensuring a safe workplace pursuant to occupational health and safety legislation.

Adverse action is an action that can be taken against an employee, potential employee or independent contractor and includes dismissing them, injuring them in the course of their employment (for example by taking unwarranted disciplinary action), altering their position to their prejudice (for example by demoting an employee), or discriminating between an individual and other employees. Adverse action also extends to threatening or organising to take any of these actions.

To be successful in an adverse action claim, an employee does not need to demonstrate to the court that the alleged conduct of the employer was intentional or deliberate but, as noted by His Honour Justice Barker in Australian Licenced Aircraft Engineers Association v International Aviation Service Assistance Pty Ltd [2011]:

“The simple statutory question for the purpose of identifying an ‘adverse action’ is whether, in a given case, there is an action taken by an employer against an employee that in fact ‘alters the position of the employee to the employee’s prejudice’.”

As such, it is important for employers to note the broad nature of the general protections that employees have access to when making any workplace decisions. For example, case law shows that an employee who was terminated for misconduct in circumstances where he had also lodged a workers compensation claim was reinstated. This was a result of the Federal Magistrates Court determining that he lost his employment due to an unlawful action – being that the employer considered the workers compensation claim in its decision to terminate that individual.

Reducing the risk of General Protections claims

Employers should be familiar with the workplace rights that are protected under the general protections legislation. Part 3-1 of the Fair Work Act sets out in detail the rights and responsibilities of both employees and employers that create the general protections framework. It is also prudent to review your workplace policies to ensure that they are compliant with the general protections legislation. This includes making sure harassment, bullying and discrimination policies are up-to-date and distributed across your organisation. These should be reviewed on an annual basis. Should it be decided that action must be taken in respect of an employee, documentation showing an explanation of the lawful reasons for the actions will provide a basis from which to defend any potential claims. Further, HR practitioners and managers should familiarise themselves with the practicalities of a general protections claim, including:

1. Compensation is uncapped in this jurisdiction and therefore the risk is greater than in an unfair dismissal claim where compensation is capped at 6 months’ salary (which under the high income threshold is a maximum of $68,350);
2. Reinstatement, injunction, compensation and penalties are all remedies that a Court may order;
3. A reverse onus of proof applies to claims, meaning that if an employee alleges that adverse action has been taken in respect of a workplace right, the adverse conduct is presumed unless the employer satisfies the Court otherwise;
4. No matter how many reasons an employer has for taking action against an employee, if one of them is a protected workplace right, then the employee’s claim will succeed;
5. Ordinarily, the parties bear their own costs in a general protections matter;
6. Both the Federal Court and the Federal Magistrates Court can deal with a claim;
7. Both employers and employees can be represented by a lawyer or paid agent in a general protections matter; and
8. Employees cannot make a general protections claim and an unfair dismissal claim at the same time. If they bring one and it fails, it is likely that they will be out of time to bring the other.

If an employee chooses to lodge a general protections claim that involves dismissal, the employee has 21 days after the date the dismissal took effect to lodge an application with the Fair Work Commission. Applications where the employee has not been dismissed can be lodged up to six years from the date the alleged contravention occurred. After an application is received, the Fair Work Commission will advise the other party to the dispute that an application has been made and the other party will have an opportunity to submit a response to the Commission. Subsequent to this, the parties must attend a private conference to attempt to resolve the dispute by conciliation. Should resolution not occur, the applicant may choose to proceed to Court. The process in the Commission is generally much quicker than that of a Court, however a general protections claim can cause a significant level of disruption and cost to an organisation. This can be mitigated by a thorough understanding of the legislation being applied to the organisation and managers being educated about these protections and the proper records to keep.

Take away points to consider

Any exercise of a workplace right by an employee should take no part in a decision to terminate that employee’s employment, even if it creates a disadvantage to the organisation. For example, if an employee is taking days off due to illness or injury that is in excess of what that employee has accrued, a decision to terminate their employment based on the fact that their absence is creating a drain on the organisation is unlawful. It is important to remember that often the general protections provisions may seem uncommercial, and indeed in some circumstances they are, however this legislation is geared toward protecting employees and must be nevertheless complied with. To this extent, it is imperative that organisations take into account their legal obligations when making decisions about employees and prospective employees. We would suggest consultation with a workplace relations specialist to assure compliance in this regard, especially when considering terminating an employee or updating workplace policies.