Demystifying Australian Employment Law: A Layman's Guide to General Protections and Adverse Action Claims

Navigating the labyrinth of Australian employment law can seem daunting to those unacquainted with its intricacies. The cornerstones of this legislation – General Protections and Adverse Action Claims – play pivotal roles that demand comprehension. Today, let’s unravel these multifaceted legal structures in a more digestible manner.

General Protections: The Pillar of Employee Rights

General Protections constitute a significant part of Australian employment law, serving as a bulwark against workplace discrimination and unjust practices. These safeguards, outlined in the Fair Work Act 2009 (Cth), ensure a balanced, equitable, and fair workplace for all employees.

Here are the key takeaways:

You needn’t be dismissed to lodge a general protections claim.
Any discrimination, failure to deliver legal rights, or unjust treatment vis-à-vis other employees can trigger a general protections claim.
If an employer violates these protections, you are empowered to take swift legal action against them.

Much like unfair dismissal claims, disputes relating to dismissal need initial mediation at a Fair Work Commission (FWC) conference.

The Wide Scope of General Protections

General Protections encapsulate a myriad of situations, all governed by the Fair Work Act 2009 (Cth). They defend employees from any detrimental employer action taken due to:

Attributes such as ethnicity, gender, religious beliefs, age, etc.
Union affiliation or active involvement.
Valid absences from work, including due to sickness, injury, or parental leave.
Employment-related grievances or enquiries.

In these situations, the claimant carries the initial proof burden. They must demonstrate that the negative action resulted from a protected attribute or action. The onus then switches to the employer to disprove these assertions.

Consequences of Successful General Protection Claims

Upon a successful general protections claim, the court may decree:

Compensation for financial loss, which has no cap.
Compensation for non-economic loss, such as anguish, distress, or embarrassment.
Monetary penalties as per the Fair Work Act 2009 (Cth).

Unravelling Adverse Action Claims

Adverse action claims, a subset of general protections claims, are frequently paired with unfair dismissal claims. Adverse actions can encompass dismissal, detrimental alterations in employment terms, or biased treatment. The initiation of an adverse action claim does not necessitate dismissal or termination.

To validate an adverse action claim, the employee must initially present a plausible case that a protected attribute or activity motivated the adverse action. The employer then has the task to show that the protected attribute or activity did not sway their decision.

Unfair Dismissal vs General Protections: Distinguishing the Two

While unfair dismissal and general protections might seem like different faces of the same dice, they’re separate entities.

Unfair dismissal focuses on the unjust termination by your employer, whereas general protections are about safeguarding your fundamental rights as an employee, regardless of dismissal.

Identifying the category that best fits your circumstances is critical. If you feel you’ve suffered unfair dismissal or your general protections have been breached, it’s vital to consult a professional.

While the intent of this blog is to simplify these intricate legal concepts, it’s important to remember it should serve as a starting point, not a substitute for professional advice.

Demystifying Australian Employment Law: A Layman’s Guide to General Protections and Adverse Action Claims