In our previous blog we delved into unfair dismissal and how it affects both employees and employers. Now, let’s shift our focus towards General Protections claims, providing a detailed guide for employers on how to navigate these types of cases when lodged with the Fair Work Commission.
Unveiling General Protections:
Enshrined in the Fair Work Act 2009 (Cth), General Protections exist to safeguard employees against adverse action from their employers due to their execution or intention to exercise a workplace right, such as taking leave, lodging complaints, or seeking flexible work arrangements. Moreover, it offers protection against discrimination, sham contracting, and prejudiced action resulting from temporary absences due to illness or injury.
Understanding Adverse Action:
Adverse actions involve steps taken against an employee, including dismissal, threats of dismissal, prejudicial alteration of an employee’s position, or discriminating between employees. Examples range from dismissing an employee or implementing a performance improvement plan due to a complaint, OH&S concerns, or underpayment issues with the Fair Work Ombudsman. It may also extend to demoting or not providing casual shifts because the employee is pregnant or took sick leave.
Lodging a General Protections Claim:
Employees can file a claim with the Fair Work Commission asserting illicit action taken in their workplace either during their employment or after dismissal. The procedure for lodging a claim post-dismissal is similar to an unfair dismissal claim, but an employee must choose between the two as they cannot file both.
Who Can File a General Protections Claim?
The criteria for filing a General Protections claim are more relaxed than those for unfair dismissal. These protections apply to all employees and even extend to certain employers, independent contractors, and labour hire. There is no qualifying period, enabling probationary and casual employees, and even prospective employees, to bring a claim. Like unfair dismissal claims, General Protections claims must be lodged within 21 days of dismissal.
Resolving a Dismissal Dispute:
Upon receiving a lodged General Protections dismissal dispute, the Fair Work Commission provides a copy to the employer, who must respond within seven days. The dispute is then listed for a telephone conciliation, which is a voluntary process. If conciliation fails and reasonable attempts have been made to settle the dispute, it escalates to a formal hearing in the Federal Court or Federal Circuit Court.
Bearing the Burden of Proof:
A key issue for employers defending General Protections claims is the reverse onus of proof. If an employee alleges a prohibited reason contributed to the adverse action, the employer must validate their decision and demonstrate it wasn’t because the employee exercised a workplace right or due to a protected attribute. Unless the employer proves otherwise, the Fair Work Commission will assume a breach of General Protections has occurred.
Consequences of Breaching General Protections:
The potential penalties for breaching General Protections can be severe. Unlike unfair dismissal claims where compensation is capped at six months’ pay, there is no limit on compensation for General Protections breaches, which may also include remuneration for hurt, humiliation, and stress. Fines can be levied on employers, for dismissing an employee due to a temporary absence from work due to illness or injury.
Defending a General Protections Claim:
The optimal defense against a General Protections claim is prevention. Prior to dismissing an employee, evaluate the possibility of them asserting that the dismissal contravened a General Protections provision. If such a claim could be made, you must be able to demonstrate a legitimate reason for termination. For instance, if an employee on parental leave is made redundant, ensure an objective assessment of the redundancy’s necessity, and the reasons for choosing that individual, has been made. Your rationale should highlight the redundancy of the role, rather than any bias towards the individual on parental leave.
For further assistance do not hesitate to call Frontline Employment Defenders Now on 1300 089 353 or visit us on www.fled.com.au