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What is a General Protections Claim
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Visit https://www.aitkenlegal.com.au to find out more and SUBSCRIBE for more employment law tips. • Are you aware of the dangers of the general protections provisions in the Fair Work Act 2009? • I’m Hamish Procter from Aitken Legal. Most employers have heard of unfair dismissal claims, and are very wary of the risk of an unfair dismissal application when considering whether to terminate an employee. However, in the last 5-6 years, we have seen an increasing number of employees make a general protections claim as opposed to an unfair dismissal claim. • As a very brief overview of these claims, the most common provisions utilised by employees make it unlawful for an employer to take adverse action against an employee because the employee has exercised a workplace right. A workplace right has been interpreted very broadly by the Courts, but the most common workplace rights we see exercised by employees are where they make complaints or enquiries about their pay or hours, have been away absent or ill, or otherwise make complaints like workers compensation claims, workplace bullying claims, sexual harassment or discrimination claims or workplace health and safety complaints. • If an employee has exercised a workplace right, and you subsequently terminate them (or otherwise take adverse steps against them, such as performance manage them, or demote them), then you could find yourself facing a general protections claim. This can occur even where you have not undertaken action because of the exercising of the workplace right. This latter point usually becomes the key item in assessing whether there has been a breach of the provisions. • The General Protections Provisions also make it unlawful for an employee to take adverse action against an employee because the employee possesses a discriminatory attribute, or because they have been temporarily absent due to illness or injury. • Unlike unfair dismissal claims, where compensation is capped at 6 months’ pay, the general protections provisions have uncapped compensation provisions, and significant civil penalties can also be applied where an employer is found to be in breach. Unlike unfair dismissal, there is no qualifying period that an employee must serve before they can make these claims, and they can even be made pre-employment or whilst the employee remains employed. • These claims are financially imposing, and are on the rise, and employers need to wary of them. Aitken Legal always recommends that before terminating an employee, employers should call one of our experienced employment lawyers. • #generalprotectionsclaim #employmentlaw #unfairdismissalclaims #fairworkact
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