What Are General Protections?
The Fair Work Act 2009 provides employees with certain protections, described in the act as ‘General Protections’. Most employees in Australia have the benefit of these protections, with the exception of state government employees.
General protections are broad and wide-ranging, and include protections against discrimination on the basis of race, sex, sexual orientation, age and other bases.
However, the most commonly exercised general protection right is the right of an employee not to have any adverse action taken against them as a consequence of their exercise (or proposed exercise) of a workplace right.
What Is A Workplace Right?
Workplace rights can take many forms. They include:
- The right to take annual leave, sick leave or parental leave;
- The right to request flexible working arrangements;
- The right to commence a legal claim; and, most broadly
- The right of an employee to make a complaint or inquiry in relation to their employment.
What Is Adverse Action?
Adverse action has a very broad definition. Anything that can be considered injurious or harmful to an employee in his or her employment could constitute adverse action. At the extreme end, adverse action could take the form of termination of employment or severe bullying. At the less extreme end, it could include generally unfavourable treatment, exclusion or demotion.
I’m an employee, do I have a right to bring a general protections claim?
If you have suffered adverse action (which could mean termination of your employment or something less serious than that) as a consequence of your exercise or proposed exercise of a workplace right (which could be as basic as you having made a complaint about your employment), then you may be entitled to bring a general protections claim.
Common circumstances in which general protections claims are brought include:
- Where an employee has made a complaint (perhaps a bullying complaint, a complaint in relation to work hours or a complaint in relation to working conditions or entitlements), and has found themselves marginalised, bullied or sacked as a consequence of that complaint.
- Where an employee has found themselves marginalised in the workplace because they have taken maternity/parental leave.
- Where an employee has taken sick leave, or been absent from work due to illness or injury, and has been sacked or otherwise marginalised in their role.
If you think you may have experienced adverse action as a consequence of exercising a workplace right, we can advise you on whether you have a claim that is worth bringing.
I’m an employer, am I at risk of a general protections claim?
Employers often find themselves in trouble when trying to performance manage employees. We often see circumstances where an employee is put on a performance improvement plan or similar, and that employee then ‘makes a complaint’ about the plan, the individual who has been critical of their performance, or some unrelated complaint.
If the employer thereafter decides they need to terminate the employee for performance reasons, the employer is at risk of the employee alleging that the termination was due to the complaint, rather than the poor performance. Such claims are rarely successful, but in circumstances where General Protections proceedings do not generally result in costs orders being made, irrespective of the outcomes, these claims can be costly and distracting for employers.
We can assist in successfully managing claims once they are brought. However prevention is always the better part of cure, and the risk of claims being brought can be substantially reduced by taking certain steps prior to any termination action. We can assist with this as well.
What sort of outcome is likely if a general protections claim is successfully brought?
The outcomes of general protection claims can vary wildly depending on the circumstances of the case. General protections claims are one of the few jurisdictions where the court is likely to award compensation for pain and suffering in addition to genuine economic loss. The courts can also award penalties against the employer, and against individuals involved in the adverse action, as punitive measures, and these can in some instances be made payable to the applicant. Unlike unfair dismissal claims, there is no upper limit on the amount of money which can be awarded in favour of a successful applicant.
However, huge windfall outcomes are quite rare, and in circumstances where parties generally have to bear their own costs of the proceedings, it is often sensible to seek an early commercial settlement.
How We Can Help
We are experts in both running and defending general protections claims. If you think you have been the victim of adverse action, or if you are an employer and are concerned that you may be facing a GP claim, then we can advise and represent you to get the best outcome.