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Navigating the Perils of General Protections and Adverse Action Claims in Australia

Understanding the complexities of the general protections and adverse action claims in Australia is crucial for employers. While the threat of an unfair dismissal claim is well-known, the risk associated with adverse actions against an employee, also known as a breach of the general protections, often goes underestimated.

This robust jurisdiction, embedded in the Fair Work Act 2009 (Cth), offers broad protection not just to the employed, but also those undergoing recruitment processes and independent contractors. Intriguingly, this law also extends to employers, although such claims from them are quite rare.

Who Falls Under This Legal Umbrella?

Under this legal framework, protection extends to:

  • Employees and employers
  • Independent contractors and principals
  • Industrial associations (e.g., unions or their members)

This post will primarily focus on adverse actions against employees.

What Do General Protections Mean?

The Act provides a range of safeguards to employees, which include:

  • Freedom to exercise workplace rights
  • Freedom to engage or not engage in industrial activities
  • Protection from discrimination
  • Protection from sham contracting arrangements
  • Protection against coercion related to the exercise of workplace rights
  • Protection from undue influence on making agreements under National Employment Standards or related to industrial agreements
  • Protection from dismissal in case of temporary absence due to illness or injury

Adverse action is prohibited against anyone exercising their workplace rights or those intending to do so.

Defining Workplace Rights

Workplace rights cover a vast range of protected work-related rights, including:

  • Rights arising from a benefit stated in a workplace law or order made by an industrial body
  • The right to perform roles or responsibilities under a workplace law or an industrial body
  • The right to initiate or participate in a process or proceeding under a workplace law or instrument
  • The right to make a complaint or inquiry to seek compliance with a workplace law or instrument
  • The right to make a complaint or inquiry relating to employment

Unraveling Adverse Action

Unlawful adverse action happens when an action is taken against an employee for a prohibited reason, such as preventing their exercise of a workplace right. This could take the form of:

  • Dismissal of the employee
  • Inflicting harm on the employee in their employment, including psychological harm
  • Modifying the employee’s position to their detriment
  • Discrimination between the employee and other employees

For job candidates, adverse action could mean denying employment or discrimination in terms of job offer conditions.

Under Section 361 of the Act, an employer defending an adverse action claim faces a reverse onus of proof. This means the court presumes the action was taken for the alleged reason(s) unless the employer proves otherwise.

The Repercussions of Missteps

When an employer takes adverse action, they may be exposed to liability for a general protections claim. Like an unfair dismissal claim, a general protections claim is first brought before the Fair Work Commission. If unresolved, it can then be taken to the Federal Circuit and Family Court or Federal Court of Australia.

Notably, unlike unfair dismissal claims, there is no cap on the compensation awarded in a general protections case. Furthermore, the Court can impose civil penalties not only on the employer but also any individual perpetrator involved in the breach.

To win a general protections claim, an employee must prove that they exercised a workplace right, faced adverse action as a result, and that there is a causal connection between the two. Once this is done, the burden shifts to the employer to show that the action was not taken for the reasons alleged by the employee.

Understanding the Landscape

Though many of these matters are often resolved through negotiation, some that reach the court have resulted in substantial awards. It’s important to remember that any employee, regardless of tenure or earnings, can bring a claim in this jurisdiction.

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