Adverse action &
general protections claims
One of the key protections for employees in Australia is the ability to bring a claim under the “general protections” provisions of the Fair Work Act 2009 (Cth).
What is often referred to as an “adverse action claim” is a claim brought by an employee on the basis that the employer (or some other person in the workplace) has taken action against the employee (eg by dismissing them, or treating them less favourably than other employees) because of a reason protected by the Fair Work Act 2009 (Cth).
Although adverse action claims are the most common, the general protections provisions of the Fair Work Act 20009 (Cth) actually include a much wider range of protections for employees.
Fair Work Act – General protections
Unlike a claim for unfair dismissal, a general protections claim can be brought by an employee regardless of their length of service or how much money they earn. Claims can be brought both during employment and after the employment has ended (so long as they are brought within 21 days of the termination of employment). Damages in general protections claims are uncapped (unlike unfair dismissal claims, where there is a statutory cap on the level of compensation available).
Some of the grounds on which a general protections claim can be brought include:
- Adverse action (see below);
- Sham contracting;
- Misrepresentation of workplace rights;
- Termination for temporary absence due to illness or injury.
Adverse action claims
An adverse action claim arises where an employer (or other person in the workplace) has taken adverse action against an employee because of a reason protected by the Fair Work Act 2009 (Cth). These unlawful reasons include:
- Because they have a protected characteristic (eg race, gender, sexuality, pregnancy, age, disability, etc);
- Because they have exercised a workplace right. Workplace rights include making a complaint or enquiry about their employment, taking leave and bringing a claim against the employer.
Such a scenario might arise where, for example, an employee alleges their employment has been terminated because they exercised the workplace right to take personal/carer’s (“sick”) leave or because they had made a complaint or enquiry concerning the workplace (eg raised a health and safety concern or made an enquiry about their pay).
Adverse action compensation can be significant, it is therefore advisable to seek legal advice if you are faced with such a claim. The adverse action claim process is discussed further below (under General Protections Claims).
Employees are also able to bring adverse action claims on the basis that they allege that they have been discriminated against – for example where they allege they have been denied a promotion because of their age, or dismissed because of their religion.
The protection also extends to prospective employees (who might allege that they have not been offered a job for a discriminatory reason).
The full list of the protected characteristics under which a general protections discrimination claim may be brought are: 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.
Discrimination claims can also be brought under Federal and State discrimination legislation (which in some circumstances contains a broader list of protected characteristics).
General protections claims
A general protections application is brought by an employee in the Fair Work Commission.
Generally the first step for an employer facing a claim is to prepare a formal “response” document – which sets out their defence to the claim. The matter is then usually listed for a telephone conciliation – basically a mediation aimed at encouraging the employer and employee to agree a settlement early on in the proceedings. If the matter does not settle at the conciliation it will then proceed to the Federal Circuit Court or Federal Court or in some cases, a formal arbitration in the Fair Work Commission.
Our lawyers have significant experience in preparing employer response documents and representing employers in conciliations and hearings. Our approach is to robustly defend your claim, but to do it in the most cost effective way as possible: it is usually inadvisable for an employer to spend excessive amounts on legal fees if this reduces the “pot” of money it has to pay to an employee to settle the claim. If you have been served with notice of a general protections claim against your business, contact us today.
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