Contact Us

Please contact us for further information:

[email protected]

1300 720 004

Testimonials

HR Advice Online allows us not to worry about HR. We get all the information that we require – all the resources, the forms, anything that we require is done by them. If we get audited HR Advice Online makes sure we are compliant. Also, for any issues that we’re not sure how to deal with; they’re only a phone call away.

- Sharon Knott, First National Treeby

Blog

Recent news

General protections claims – What are they?

While an employee’s entitlement to lodge an unfair dismissal claim is widely understood, what happens if you receive a claim from an employee who alleges that there has been breach of the Fair Work Act 2009 General Protections provisions?. How does this differ from an unfair dismissal claim?

A general protections claim can arise when an employee believes that a workplace right is infringed or where adverse action is taken or is threatened because a person with a workplace right, exercises such a right or proposes to exercise a workplace right.

Although the term 'workplace right' does has a broad meaning, a person has a workplace right if they:

  • have an entitlement under a workplace law or a workplace instrument such as an award or enterprise agreement
  • is able to initiate a proceeding under a workplace law or workplace instrument
  • is able to make a complaint or inquiry in relation to their employment.

For example, an employee may claim a breach of the general protections provisions if they are dismissed and can demonstrate that the dismissal was because they had taken a period of temporary leave due to having been unwell. 

An employer may be deemed to have taken adverse action against an employee if they:

  • dismiss the employee;
  • injure the employee in their employment;
  • alter the employee’s position to the employee’s detriment;
  • discriminate between the employee and other employees of the employer.

Adverse action also includes ‘threatening’ to take  action against an employee.

Although most general protections disputes involve an employee and their employer, a claim may be made by a prospective employee, an independent contractor or a person who has entered into a contract for services. 

There are a number of factors that differentiate a general protections application from that of an application for unfair dismissal, including:

  • There is no qualifying period or remuneration cap for a general protections claim. General protections commence from the start of an employee’s employment and, in some cases, before the employee is employed, and will apply regardless of what the employee earns 
  • Although a general protections claim will commonly be related to an employee’s dismissal, an employee who is still employed could elect to use the general protections provisions to assert their rights.
  • There is a reverse onus of proof which means that it is the employer who must ensure there is no connection of any kind between the dismissal, and a workplace right of the employee.
  • As there are fewer jurisdictional issues relating to adverse action claims, lodging a general protections claim does provide an attractive option where the employee’s annual earnings exceed the high income threshold under the Fair Work Act 2009.
  • Courts may make any order that it considers appropriate where it is satisfied that a contravention of the General Protections provisions has occurred. Broad remedies available in a successful adverse action claim can include orders:
    • granting an injunction (or interim injunction), to prevent, stop or remedy the effects of a contravention
    • an order awarding compensation for loss that a person has suffered because of the contravention. It is important to note that damages under a general protections claim are uncapped
    • an order for reinstatement of the person.

Like an unfair dismissal claim, an employee has 21 calendar days after the day of dismissal to apply to the Fair Work Commission to deal with the dispute.

A person cannot make a general protections dismissal application at the same time as an unfair dismissal application.

In defending an ‘adverse action’ claim, an employer will need to provide credible evidence which explains the reason or reasons why the adverse action was taken against the employee. To minimise the risks of a general protections claim, it is important:

  • To be clear about the reasons for termination.
  • Prepare evidence to support the reasons provided at the time of termination.
  • Ensure the reasons given to the employee can be tested against the circumstances at the time of the termination. For example, if the employee was dismissed for poor performance, ensure that there is evidence to support this.
  • Be able to provide evidence that rebuts the claim that termination occurred because of a workplace right.
  • Keep the number of decision makers involved in the process to a minimum where possible. If needed to  defend a claim, the Court will seek to hear from all decision makers involved in deciding to terminate the employee’s employment.

If you require assistance or HR Advice on any matter, please contact the team at HR Advice Online at [email protected] or on 1300 720 004.

Information in HR Advice Online guides and blog posts is meant purely for educational discussion of human resources issues. It contains only general information about human resources matters and due to factors, such as government legislation changes, may not be up-to-date at the time of reading. It is not legal advice and should not be treated as such.

Share this article

Welcome to HR Advice Online

To subscribe to our content and download our resource tools, you first need to be a registered user on our site. Please register first and you will be redirected to our Membership Page.

Member Login

Username:
Password:
Forgot Password ?  

Not a member yet? Sign Up!

Australia's Leading Online HR & Safety Advisory Service. 1300 720 004
Privacy Statement     Terms Of Use     Website Powered by SBM     © HR Advice OnLine Pty Ltd