Following our recent unfair dismissal article I now look at how employers can defend general protections claims made to the Fair Work Commission.
What are the general protections?
General protections are contained in the Fair Work Act 2009 (Cth). Under the Act employers are prohibited from taking adverse action against an employee because they have, or intend to, exercise a workplace right (e.g. take leave, make a complaint or make a request for flexible working arrangements) or engage in industrial activity. The Act also protects against discrimination (e.g. due to race, colour, sex, sexual orientation, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin), sham contracting, coercion or prejudicial action over a temporary absence due to illness or injury.
Adverse action against an employee includes dismissal or threatening dismissal, injuring an employee in their employment (single them out), altering an employee’s position to their prejudice, or discriminating between the employee and others. Examples include, dismissing an employee or putting them on a performance improvement plan because they have made a complaint, have raised OH&S concerns or contacted the Fair Work Ombudsman about an underpayment. It can also include demoting or not offering casual shifts to an employee because the employee is pregnant or has taken time off due to illness.
Making a general protections claim
Employees can apply to the Fair Work Commission claiming unlawful action has been taken against them in relation to the workplace, either before or while they are employed (a ‘non-dismissal dispute’) or after they have been dismissed (a ‘dismissal dispute’). The application in a dismissal dispute is a similar process to an unfair dismissal application but the employee must elect which claim to make as they cannot make both.
Who can bring a general protections claim?
The eligibility criteria for making a general protections claim is less restrictive than an unfair dismissal claim. General protections provide protection for all employees and extend to some employers, independent contractors and labour hire. There is no qualifying period, which means that even employees within their probationary period and casual employees can bring a claim. In fact, even prospective employees can bring a claim, for example if they think they didn’t get a job because they were discriminated against. As with unfair dismissal applications, general protections claims (dismissal disputes) must be made within 21 days of the employee’s dismissal.
In making an application, the employee needs to identify the adverse action taken or threatened and the general protections provision that was breached by that action (or threatened action). The claim can be made even where the exercise of their workplace right, or protected attribute, was one of several reasons for the employer taking adverse action against them. There may be a legitimate reason for the dismissal but if one of the reasons is a prohibited one, a breach of the general protections provisions can still be established if the prohibited reason was a substantive and operative reason.
Resolving a dismissal dispute
Once a general protections dismissal dispute has been lodged a copy will be provided to the employer, who will have seven days to submit a response. The matter will be listed for a telephone conciliation, which is a voluntary process. The conciliation is held in a very similar manner to an unfair dismissal conciliation, which I discussed in my recent article ‘Defending an unfair dismissal claim? Here’s what you can expect’.
If the matter doesn’t settle at conciliation and if reasonable attempts have been made to resolve the matter, the Fair Work Commission will issue a certificate to the employee who must then make an application to the Federal Court or Federal Circuit Court to have the matter heard at a formal hearing. Whilst the matter can be heard by the Fair Work Commission if both parties agree, in our experience, most matters are listed in Court.
The onus is on the employer
One significant issue that arises for employers defending general protections claims is that there is a reverse onus of proof. This means that once an employee claims that a prohibited reason was one of the reasons for the action the employer has to justify their decision to take adverse action and show that it was not because the employee has, had or exercised a workplace right or because of another protected attribute. The Fair Work Commission will presume that a general protections breach has occurred unless the employer can prove otherwise.
What happens if an employer is found to have breached the general protections provisions?
Unlike an unfair dismissal claim (in which compensation is generally limited to six months’ pay), compensation for a general protections breach is uncapped and an employee can also claim compensation for hurt, humiliation and stress, so the amount of compensation can be significant. Employers can also be fined for breaching the general protections provisions of the Fair Work Act. Dismissing an employee because of a temporary absence from work due to illness or injury can attract a maximum penalty of $12,600 for individuals and $63,000 for companies.
Defending a general protections claim
The best way to defend a general protections claim is to prevent it from being made in the first place. Before dismissing an employee, consider whether they could reasonably claim that the dismissal was in contravention of a general protections provision. If they can, you need to be able to show that the reason for the decision to terminate was because of some other legitimate reason. For example, if you make an employee who has been taking parental leave redundant, make sure that you have objectively assessed the need for the redundancy and your reasons for making that person redundant. Your reason or motive for choosing that employee should not point to bias or subjectivity – it should be based on their role no longer being required, not because the employee is on parental leave.
Tips for avoiding a claim include:
- Be clear about your reasons for dismissing an employee or taking other adverse action. Ensure they are objectively reasonable and properly recorded.
- Understand why you are taking adverse action and check your motive to avoid any possible bias
- Make your reasons known to the employee so they are clear about why they are being dismissed or other adverse action is being taken against them. Leave them with no doubt about the reasons for the adverse action
- Be consistent in your approach to employees and treat everyone equally
- Comply with any company policies and procedures, especially when dealing with employee disputes or when choosing roles for redundancy
Representation by a Lawyer
While parties can represent themselves throughout the general protections process having a lawyer prepare the forms and advocate on your behalf can be a worthwhile investment.
At Robertson Hyetts we have assisted many employers to successfully defend or resolve general protections and unfair dismissal claims. Call our team on 03 5434 6666 (Bendigo) or 03 5472 1588 (Castlemaine) for a no obligation discussion of your matter or for general advice or support on an employment issue.
This article includes general advice and incorporates information from the Fair Work Commission and Fair Work Ombudsman sites. For specific advice, which is tailored to you and your business, please contact our office.