Making & defending General protections claims

Trusted Advisors for Complex Claims

The general protections provisions under the Fair Work Act 2009 (Cth) can give rise to legal claims that are more complex and technical than an unfair dismissal claim.

The Fair Work Act provides a variety of general protections, including by prohibiting employers from taking adverse action (such as dismissal) against an employee because the employee:

Has exercised a workplace right (such as the right to take paid annual leave).
Has made a complaint in relation to their employment.
Has engaged in industrial activities.
Possesses an attribute protected under anti-discrimination law.

At Burn Legal Australia, we have experience representing employers and employees in general protections disputes and getting good outcomes for our clients.

We also provide proactive legal advice to employers who are concerned about taking disciplinary action against employees who appear to be protected by the general protections provisions of the Fair Work Act.

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General protections under the Fair Work Act 2009 (Cth)

Why was the adverse action taken?

The central question in a general protections dispute is often "why was the adverse action taken?" There will be no breach of the general protections provisions if the adverse action was not taken "because" of the prohibited reason.

For example, an employer will not contravene the general protections provisions by dismissing a pregnant employee, if the reason for that action was because of the employee's serious misconduct and had nothing to do with the employee's pregnancy. Notwithstanding, that kind of dismissal may still be "unfair" depending on the circumstances.

Consequences of breaching the general protections provisions

The Federal Court or the Federal Circuit and Family Court may make any order the Court considers appropriate with respect to breaches of the general protections provisions. For example, the court may order:

Compensation for loss that a person has suffered because of the contravention.
Reinstatement.
The employer, and any one else "involved in" the contravention, to pay a financial penalty. These financial penalties may be significant.

Frequently Asked Questions: General Protections Claims

Can an employee bring a general protections claim during probation?

Yes, there is no minimum service period before an employee can bring a general protections claim.

Is there a time limit on making a general protections claim involving dismissal?

Yes, a general protections application involving dismissal must be lodged with the Fair Work Commission within 21 days after the dismissal takes effect. The Fair Work Commission may allow a further period for lodgment in exceptional circumstances.

What constitutes "adverse action" for the purpose of a general protections claim?

Broadly, an employer can take adverse action against an employee by:

Dismissing the employee. This is the most straight forward example of adverse action.
Injuring the employee in their employment. This covers injury of any compensable kind. The injury refers to the deprivation of one or more immediate practical incidents of employment, such as loss of pay or reduction in rank.
Altering the position of the employee to the employee's prejudice. This covers not only legal injury but any adverse affect to, or deterioration in, the advantages enjoyed by the employee before the conduct in question (for example, suspending an employee with pay).
Discriminating between the employee and other employees of the employer. This involves an employer deliberately treating an employee, or a group of employees, less favourably than it treats other employees, on the basis of a prohibited reason. The element of intent is central to establishing discrimination.

What are some examples of a "workplace right" for the purpose of a general protections claim?

Some common examples of an employee exercising a workplace right include an employee:

Taking paid personal/carer's leave.
Inquiring about their wage entitlements.
Making an application to the FWC for orders to stop bullying at work.
Making a complaint in relation to Work Health and Safety matters.
Engaging in protected industrial action.

Can an applicant file a general protections claim even if they haven't been dismissed?

Yes, a general protections claim does not require dismissal.

For example, a general protections claim could be brought by:

An employee who has suffered other forms of "adverse action".
A job candidate who is denied a job (for example, due to the candidate's disability).

There are different legal pathways for general protections claims that involve dismissal and general protections claims that do not involve dismissal.

What happens if a general protections claim does not settle at a FWC conciliation?

Unlike unfair dismissal claims, the FWC does not have the power to arbitrate a general protections claim unless the parties have consented to that approach (which is not common).

If a general protections claim involving dismissal does not resolve at conciliation and the FWC is satisfied that all reasonable attempts to resolve the dispute (other than by arbitration) have been, or are likely to be, unsuccessful, then: