Over the last 6 months we have seen a significant rise in General Protections claims made against employers, with business owners and managers needing to defend themselves and their company against claims of sham arrangements, adverse action and discrimination. Many of these claims are being made even while employees are involved in a show cause or performance management process.
To help you protect your employment brand and mitigate risk and liability, here is what you need to know about navigating the minefield of General Protections.
What are General Protections?
General protections safeguard workplace rights, provide protection from discrimination and offer relief and compensation for workers who have experienced unfair treatment, been discriminated against or victimised.
As instructed by the Fair Work Commission, “a person (such as an employer) must not take any ‘adverse action’ against another person because that person has a workplace right, has exercised a workplace right or proposes to exercise that workplace right.”
What is an adverse action? An adverse action can include:
- Dismissing an employee
- Not hiring an employee
- Treating them differently to others in the workplace
- Changing their job description to their disadvantage
- Not giving them their legal entitlements
- Offering them unfair and different terms and conditions compared to others in the workplace
Why are General Protections lawsuits on the rise?
Typically in legal proceedings, like in the case of an Unfair Dismissal claim, an employee would need to bring evidence of an employer’s wrongdoing to prove their case.
However, in a General Protections claim, reverse onus applies, and it is up to the employer to defend their position and prove the employee’s claims wrong. As you can imagine, if you don’t have the right procedures, policies, documentation and reporting in place General Protections suits can be harder to defend.
A case in point
Recently we defended a client against an unrepresented litigant who claimed that he was firstly underpaid and secondly that is resignation was a constructive dismissal.
After much delay and indulgence by the Fair Work Ombudsman, the conciliator at the Fair Work Commission and finally the Federal Circuit Court, the claim which was originally about the interpretation (or misinterpretation) of the relevant Modern Award, evolved into a General Protections application.
Putting aside all valid jurisdictional objections (and therefore full defences) that the application was made out of time and should not require an answer by the employer, in practical terms a defence, submissions and evidence to support this defence was still required.
To add further insult, the employee who by this stage was represented by an employee advocate, added submissions for penalties to be made against the company, directors of the company, managers of the employee and the contract administrator who hired the employee, prepared the contract and dealt with the employee’s complaint of underpayment of wages.
As a result, penalties of up to $54,000 for the company and $10,800 for each individual were possible remedies and as such the case turned on whether the adverse action (the constructive dismissal) was because of and therefore a causal link to the workplace right to complain about an underpayment of wages.
To answer this question, the judiciary were required to review the evidence, and thankfully for our client, the evidence supported the argument that:
- There was no forced resignation due to the complaint; and
- The resignation by itself meant no adverse action had occurred (or at least not linked to the complaint)
What this means for you
What is important to realise is that this can happen to any business, yours included, who have unknowingly hired an employee who is prepared to take such actions against their former employer. It is also a situation where even middle management employees could suffer the indignation of being individually named on a general protections application, especially when complaints about underpayment of wages (whether valid) are not dealt with quickly.
The penalties regime makes it easier for employees to file a general protections claim and although there are a lot more hurdles to jump over, the Courts have become increasingly indulgent in these applications to ensure a fair hearing.
While it is not recommended, a competent HR manager or director can run an unfair dismissal claim in a tribunal such as the Fair Work Commission if they have a background in law or human resources. However, a General Protections claim, especially due to the nature of the penalties regime, and the potential negative publicity that is associated with it requires sound legal advice from experienced employment lawyers.
Could you and your business be vulnerable to a general protections claim? NB Lawyers, the lawyers for employers, offer a consultation to discuss how you could be exposed through general protections.