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General Protection Rights/Claims

General protection rights/claims are collectively, and primarily, the protection of employees and contractors from unlawful conduct.  There is also, but less commonly, protection for prospective employees, prospective contractors, employers and principals from unlawful action.

Unlawful conduct is the breach of a workplace rights; breach of a person’s industrial rights or right to associate; and/or workplace discrimination, including dismissing ill or injured employees who are temporarily absent from work.

The breach of a workplace right can be misrepresentation of, or coercion in relation to, someone’s rights or the exercise of those rights.  However, the most common breach of a workplace right of an employee is the taking of Adverse Action by the employer.

Our FAQ’s focus on adverse action and the protections of certain other workplace rights of employees.

FAQs

What is the protection from Adverse Action?

The law says that an employer must not take adverse action against an employee: (a) because the employee has a workplace right, exercises or proposes to exercise or proposes not to or does not exercise a workplace right; or (b) to prevent the employee exercising a workplace right.

This is, the employer must not dismiss, injury (in the industrial sense), alter the position of an employee to their prejudice or discriminate against the employee because of an employee’s employment entitlement (including under a workplace law or industrial instrument) and/or the right to exercise and enforce those employment entitlements.  

The protection is broad and care must be taken when assessing if the protection has been breached by an employer.   

How does the Court determine if there has been adverse action?

Firstly, the employee must identify the workplace and secondly, that the employer took adverse action.  By way of example, the employee could allege they raised a query about their pay and then they were terminated for raising the query.

There is a presumption under the Fair Work Act that the employer took adverse action because of the employee’s workplace right. This presumption is rebuttable, but the employer must show the reason for the adverse action (in our case the dismissal) was not the result of the workplace right (in our case, a query about payment).  The law also says that if the workplace right was only one of the reasons for the adverse action, then the employee establishes the employer breach the general protection.

What compensation is payable?

The Courts have wide powers to award compensation for loss(es) suffered by the employee. This can include in very limited circumstances an order for reinstatement. The more common outcome is an order for compensation for past and future economic loss and general damages (for pain and suffering and hurt and humiliation). There is no limitation on compensation like that for unfair dismissal, and more recently the Court has found that the powers under the Fair Work Act are not restricted by workers compensation legislation.

What costs are payable in adverse action claims?

The general rule is that each party pays their own costs.  However, you can be ordered to pay the other party’s costs if the proceedings (or even the conciliation before the Fair Work Commission) were commenced vexatiously or without reasonable cause or an unreasonable act/omission caused the other party to incur costs.

Can your employment be terminated if you are ill or injured?

The Fair Work Act makes it unlawful to terminate your employment if you are temporarily absent from work because you are ill or injured for a period of more than 3 months (and in the aggregate in any 12 month period) and you meet other requirements under the Fair Work Act.

What is the procedure for general protections claim?

If the claim involves a dismissal there is a requirement to conciliate or mediate the matter in the Fair Work Commission and obtain a certificate before proceedings can be commenced in a Federal Court. The Fair Work Commission does have the power to arbitrate the dispute if the parties agree. Any Court proceedings must be instituted within 14 days of the issue of the certificate.

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