The general protections listed within the Fair Work Act 2009 protect workplace rights. Under the Act, a person must not take adverse action against another person if they exercise or propose to exercise their workplace rights.
Workplace rights include :
- The capacity to make a complaint or inquiry
- The ability to initiate or participate in a proceeding under a workplace instrument or law
- Sole responsibility or benefit under a law or workplace instrument (often an agreement or award)
Adverse action includes :
- Reduction of overtime
They apply to employees and prospective employees, as well as independent and prospective independent contractors.
What is a General Protections Claim ?
A General Protections Claim often arises when an aggrieved employee, current or former, believes that adverse action has been taken by the employer when exercising a workplace right. Some common examples include terminating an employee for using leave entitlements or being dismissed when making a complaint regarding the workplace. The claim must be filed within 21 days of the dismissal. They are often difficult to traverse, and employers must be aware of these claims and take caution.
What Should I Do If I Receive a General Protections Claim?
There has been a recent spike in employers receiving a General Protections Claim rather than an Unfair Dismissal Claim. If you are an employer and have been served with notice of a General Protections Claim, it is strongly recommended that you :
- Avoid ignoring the claim, as you must respond within seven days after it has been received. Failure to do so may result in a certificate being issued by a Commission Member. This prevents the chance of resolving the matter prior to court.
- Consult a lawyer as soon as possible. You must provide evidence demonstrating that the decision to take adverse action was not for prohibited cause.
- If the employee has been dismissed and has made an application to the commission, be aware of your proposed mandatory conference date.
- Opt for arbitration if the matter is yet to be resolved after the conference. Either party can appeal the decision afterward.
A General Protections Claim must be approached with great caution. Before making a decision that may adversely impact the employee, consider any outstanding complaints made. Ensure that these matters have been resolved or do not relate to the decision you are considering.