When it comes to terminating an employee, most people immediately think of unfair dismissal. While unfair dismissal is indeed a prominent legal concern, there is another, arguably more hazardous, area of employment law: General Protections.
Let’s delve into the differences between unfair dismissal and General Protections, and why General Protections can present significant challenges for employers.
Unfair Dismissal: A Common Concern
Unfair dismissal is widely understood and frequently covered in the media due to its straightforward nature. It occurs when an employee feels they have been unjustly let go from their job. To succeed in an unfair dismissal claim, several conditions must be met:
- The employee must demonstrate that their dismissal was unfair.
- The dismissal must be deemed harsh, unjust, or unreasonable.
- Reinstatement is the primary remedy, with compensation offered only as a secondary option, typically capped at six months’ pay.
- There is an income threshold that can disqualify high-earning employees from making claims (currently set at $175,000 as of July 1, 2024).
- Small businesses, defined as those with fewer than 15 employees, can use a small business dismissal code as a defence.
The process is usually handled by the Fair Work Commission, and it rarely escalates beyond their jurisdiction. While unfair dismissal claims can be stressful for employers, the straightforward process and potential limitations often reduce the risks associated with these claims.
What Are General Protections?
In contrast, General Protections focuses on more complex legal issues, particularly those surrounding adverse action and workplace rights. Adverse action refers to any action that harms an employee’s employment, most notably termination, but it can also include other forms of discipline like suspension or warnings.
To establish a General Protections claim, the employee must prove:
- There was adverse action.
- The adverse action was due to the exercise or proposed exercise of a workplace right.
Examples of workplace rights include:
- Rights under the Fair Work Act 2009 or relevant industrial instruments, such as Modern Awards or Enterprise Agreements.
- Rights related to workplace health and safety, workers’ compensation, and protection against bullying or discrimination.
- Entitlements to various forms of leave, such as annual, personal, or carers leave.
- The right to make complaints or inquiries regarding workplace matters, such as underpayment or unsafe conditions.
Importantly, while a wide array of rights is protected, employment contracts are not considered workplace rights under General Protections. Instead, they fall under contract law, which means that contractual disputes are handled differently.
The Significance of the Causal Connection
To successfully argue a General Protections claim, an employee must show that the adverse action taken against them was because they exercised or intended to exercise a workplace right. For example, if an employee was terminated after making a complaint about sexual harassment or requesting time off due to illness, they could claim their dismissal was a result of exercising a workplace right.
Once an employee establishes these elements, the burden of proof shifts to the employer, who must prove that the termination or adverse action was unrelated to the employee’s workplace rights. This reverse onus of proof makes defending against General Protections claims particularly challenging for employers.
A Case Study: General Protections in Action
A recent example of a General Protections claim is the case of Anderson v Global Logistics Pty Ltd. In this case, Anderson, a long-time employee, was dismissed after raising concerns about his payslips and requesting flexible working arrangements due to family obligations.
Despite assurances that his concerns would be addressed, Anderson’s requests were either ignored or denied. Following an escalating series of email exchanges, Anderson was eventually terminated, with the company citing “nonprofessional behaviour” as the reason for his dismissal.
However, when the case was taken to court, it was revealed that the true reason for Anderson’s dismissal was his persistence in pursuing his workplace rights. The court found that Global Logistics had failed to meet the reverse onus of proof and had indeed taken adverse action against Anderson for exercising his rights.
The Dangers of General Protections Claims
Employers need to be particularly cautious when it comes to General Protections claims. Unlike unfair dismissal, General Protections claims can:
- Result in significant penalties, including compensation, damages, and reinstatement.
- Involve personal liability for individuals, meaning that managers or other decision-makers can be sued personally.
- Proceed to the Federal Court if not resolved at the conciliation stage with the Fair Work Commission.
Moreover, employees can file General Protections claims while still employed, adding another layer of complexity.
Mitigating Risks: How Employers Can Protect Themselves
Given the potential legal and financial consequences of General Protections claims, it is essential for employers to approach any dismissal or adverse action carefully. Some key steps to mitigate the risk of a General Protections claim include:
- Documenting the reasons for any disciplinary action or termination and ensuring these reasons are lawful and supported by evidence.
- Seeking legal advice before proceeding with any dismissal or adverse action, particularly if the employee has recently exercised a workplace right.
- Considering alternative approaches, such as mediation or negotiation, to avoid escalating the situation to a legal dispute.
General Protections is a nuanced and potentially hazardous area of employment law. While unfair dismissal remains a common legal concern, the complexities of General Protections make it a more significant risk for employers, especially when an employee’s workplace rights are involved.
Employers should prioritise understanding their legal obligations and seek proper advice to ensure they handle these situations appropriately. As always, a proactive approach to employment issues can help minimise the risk of costly legal disputes.
Disclaimer: The information provided in this blog was accurate at the time of writing and is intended as general advice. For specific advice, please call AHR on 1800 577 515.
