Understanding your rights as an employee can often feel like trying to find your way through a maze, especially with complex legislation and legal jargon. However, it’s crucial to understand that the Fair Work Act is packed with General Protections that uphold your rights and freedoms in the workplace.
The term “general protections” might seem vague, but in essence, these are designed to protect you from discrimination, victimisation, and unfair treatment at work. According to the Fair Work Act, it’s illegal for your employer to take ‘adverse action’ against you because you have, exercised or proposed to exercise a workplace right.
So what’s a workplace right? It covers everything from your benefits, such as annual leave and personal carer’s leave, to your roles and responsibilities under various laws, such as ensuring a safe workplace. Even the right to voice a complaint or inquiry about your employment is protected.
It’s also important to understand what ‘adverse action’ means. This can range from dismissing you, causing harm in your employment (like unwarranted disciplinary action), altering your position to your detriment (such as demotion), or even threatening to take any of these actions.
Interestingly, you don’t need to prove that your employer intentionally or deliberately acted against you. Instead, you simply need to demonstrate that their action has, in fact, put you at a disadvantage. In past cases, employees have been reinstated even after termination for misconduct, simply because they had lodged a worker’s compensation claim that the employer considered when deciding to terminate them.
In case you ever need to lodge a general protections claim, it’s important to note a few things. First, compensation in this jurisdiction is uncapped, unlike unfair dismissal claims. You may also potentially receive reinstatement, injunctions, and penalties. There’s a reverse onus of proof, which means that the court assumes the adverse conduct unless your employer proves otherwise.
Also, you can’t lodge a general protections claim and an unfair dismissal claim at the same time. If one fails, you may run out of time to launch the other. If you’re dismissed, you have 21 days from the date of dismissal to lodge an application with the Fair Work Commission. For instances where you haven’t been dismissed, you can lodge an application up to six years from when the alleged contravention occurred.
It’s worth noting that a recent Full Federal Court decision is likely to decrease the number of general protections dismissal applications reaching federal court hearings. Now, the Fair Work Commission (FWC) will decide whether there has been a dismissal when the application is lodged, potentially saving you the cost and stress of a federal court proceeding.
The Coles Supply Chain Pty Ltd v Milford [2020] FCAFC 152 case was particularly influential in this matter. It ruled that the Full Bench of the FWC was incorrect when it claimed it didn’t have the authority to determine whether an employee had been dismissed. Since this case, the FWC offers parties the opportunity to attend a voluntary conciliation if there’s a dispute about a dismissal, possibly allowing for resolution before costly and complex litigation.
Understanding these General Protections under the Fair Work Act might seem challenging, but they’re key to ensuring your rights and freedom in the workplace. You should never fear exercising your rights or making a complaint about your employment. This legislation is there to protect you, and understanding it can be a powerful tool in navigating your workplace environment.
Call Frontline Employment Defenders Now so we can help if you have been bullied or unfairly dismissed on1300 089 353 or visit https://www.fled.com.au