General Protections Applications / Adverse Action Claims

PH Solicitors can help employers in defending general protections applications

For many employers the prospect of defending a general protections application made by an employee under the Fair Work Act 2009 (FW Act) is daunting.  Quite rightly so! General protections claims are time consuming to defend and may result in significant pecuniary pain for employers.

When can employees make a general protections application

An employee can make a general protections application to the Fair Work Commission (FWC) if they believe that their employer has taken adverse action against them because they exercised a workplace right, engaged in industrial activities, were coerced do something contrary to a workplace right, or were unduly pressured to accept a term or condition of their employment.

Employers may also face an adverse action claim if they discriminate between an employee and other employees because of their age, gender, race, family or carer responsibilities or if they make misrepresentations about employee workplace rights.

General protections claims can even be made in circumstances where employers threaten to take adverse action against an employee thereby preventing an employee from exercising a workplace right.

There are no $$ caps on general protections

If the basis upon which an employee can make a general protections application isn’t daunting enough, there is no cap on compensation as to the amount of money that may be claimed by an applicant. By comparison, unfair dismissal claims have a compensation cap of six months.

Civil penalties can apply if employers are found liable under the Fair Work Act

Significantly, if an employer is found to have breached a general protections provision of the Fair Work Act, they may also be liable for a civil remedy penalty. Individuals may be fined up to $10,200 and corporations $51,000 for each breach.

Finally, and this is the real kicker, where a general protections application has been made by an employee against an employer, it is presumed, under 361 of the FW Act, that the action was adverse unless the employer proves otherwise.

PH Solicitor knows the law on general protection

Employers can however, take some comfort from two relatively recent decisions of the High Court of Australia where the Court outlined the basis on which an employer may overturn the presumption that adverse action taken against an employee is unlawful unless proven otherwise.

In Board of Bendigo Regional Institute of TAFE v Barclay (2012) (Barclay) the High Court emphasised that the question of whether an employer had taken adverse action against the employee is one of fact. If an employer is able to provide direct evidence to court that they did not act in a way to limit an employee’s workplace right or discriminate against an employee, and that evidence is found to be reliable, then the employer will have proved that that they have not taken adverse action.

In CFMEU v BHP Coal Pty Ltd (2014) the majority of the High Court reaffirmed the approach taken in Barclay. In this case it was found that the evidence given by the employer, as to the basis of dismissal, was sufficient to establish that the dismissal was not a breach of a workplace protection.

In effect, these two cases show that employers can successfully defend an adverse action claim if they can show that the action they took was not motivated by reasons to limit an employee’s workplace rights. In such circumstances, adverse action taken against an employee is lawful.

Employers need to take general protection claims seriously

  1. General protections claims need to be taken seriously. Workplace protections were introduced to:
  • Protect workplace rights
  • Protect freedom of association
  • Prevent discrimination, and
  • Provide relief to persons who have been treated unfairly.
  1. Recognise that taking adverse action against an employee is unlawful and may result in time consuming and costly court action.
  2. Courts may make a finding for an employee if they have been dismissed, their pay or conditions have been reduced, or their position has been altered to their prejudice and their employer did these things in breach of an employee’s workplace rights.
  1. Prospective employees may have a basis for an adverse action claim if they are discriminated against in the hiring process.
  1. Seek legal advice straightaway from Paul Horvath Solicitor if you are served with a general protections application claim from an employee.
  1. Better still, seek legal advice from Paul Horvath Solicitor before terminating an employee’s employment or if you are thinking of changing important workplace’s terms of conditions of employment – prevention is always better than cure.

Contact PH Solicitors now to discuss your options on (03) 9642 0435 or email us here.