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Unravelling the Intricacies of General Protections and Adverse Action Claims in Australia: A User-Friendly Resource

Australian employment law can appear convoluted to the untrained eye. Among its many facets, General Protections and Adverse Action Claims form a crucial part, and understanding their implications is essential. Let’s break down these complex legal constructs and make them easy to understand.

The Backbone of Employment Rights: General Protections

An integral part of Australian employment law, General Protections serve to safeguard employees against workplace discrimination and unfair treatment. These protections are stipulated in the Fair Work Act 2009 (Cth), aiming to ensure a fair, equal, and just work environment for all employees.

Before we delve deeper, here’s what you need to remember:

  • You don’t have to be dismissed to file a general protections claim.
  • Discrimination, failure to provide legal entitlements, or unequal treatment compared to other employees can all lead to a general protections claim.
  • Should an employer infringe upon any of these protections, you can initiate legal action against them promptly.

However, much like an unfair dismissal claim, a dispute concerning dismissal should first be mediated at a Fair Work Commission (FWC) conference.

The Broad Spectrum of General Protections

General protections cover a diverse range of situations, all of which are governed by the Fair Work Act 2009 (Cth). They shield employees from any adverse employer action that might be a response to:

  • Discriminatory attributes like ethnicity, gender, religious beliefs, age, and more.
  • Union affiliation or active participation.
  • Legitimate absences from work, including those due to illness, injury, or parental leave.
  • Employment-related complaints or enquiries.

In these scenarios, the applicant bears the initial burden of proof. They must demonstrate that the adverse action occurred as a response to a protected attribute or action. Subsequently, the responsibility shifts to the employer to refute these allegations.

Possible Outcomes of General Protection Claims

In the event of a successful general protections claim, the court’s possible verdicts include:

  • Compensation for economic loss, which is not subject to any maximum limit.
  • Compensation for non-economic loss, such as suffering, distress, or humiliation.
  • Pecuniary penalties in accordance with the Fair Work Act 2009 (Cth).

Decoding Adverse Action Claims

Adverse action claims are a subset of general protections claims and are often made in conjunction with unfair dismissal claims. Adverse actions might include dismissal, detrimental changes in employment conditions, or discriminatory treatment. To initiate an adverse action claim, there need not be any dismissal or termination involved.

To prove an adverse action claim, the onus is first on the employee to establish a prima facie case that a protected attribute or activity was a reason for the adverse action. The employer then bears the burden to prove that the protected attribute or activity did not influence their decision.

Unfair Dismissal and General Protections: Understanding the Difference

Unfair dismissal and general protections might appear to be two sides of the same coin, but they are distinct entities.

Unfair dismissal is about being terminated unfairly by your employer. On the other hand, general protections revolve around maintaining your fundamental rights as an employee, irrespective of the dismissal.

Recognising which category best suits your situation is of utmost importance. If you believe you’ve been a victim of unfair dismissal or that your general protections have been violated, it’s crucial to seek professional counsel.

While this blog aims to simplify these multifaceted legal constructs, remember that it should be used as a preliminary resource and not a replacement for professional advice.

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