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Avoid general protections claims

Workforce Guardian HR solutions  can help you avoid General Protections Claims to reduce the risk of uncapped damages, court orders and injunctions.

Since the introduction of the Fair Work Act 2009, the number of general protections claims has steadily increased every year. The majority of these claims are brought by employees (and sometimes independent contractors) following dismissal.

In 2015-2016, the Fair Work Commission received 3270 applications to resolve general protections disputes. Almost 1200 of these cases settled with payouts, while the Commission issued certificates for 755 to proceed to court. 13 general protections claims involving dismissal settled for more than $100,000, 49 claims settled for more for more than $50,000 and 136 claims settles for more than $20,000.

Compensation is uncapped in a general protections action, exposing employers to significant risks when cases reach the Federal Court.

What is a General Protections Claim? 

Under the Fair Work Act 2009, a person (such as an employer), must not take any 'adverse action' against another person (such as an employee), because:

  • of their workplace rights (eg. entitled to a benefit).
  • of their industrial activities (eg. union member).
  • they possessed a discriminatory attribute (eg. race, sex, age, physical or mental disability, etc).

There are no qualifying periods or remuneration caps for a General Protections Claim. This means general protections apply from the start of an employee's employment and, in some cases, before the employee is employed, and apply no matter what the employee earns.

A person who claims to have been dismissed in connection with a workplace right must file a General Protections Claim within 60 days of the dismissal.

What is 'Adverse Action'?

Adverse actions that can be taken against an employee or potential employee might include:

  • dismissing them.
  • not giving them their legal entitlements.
  • changing their job to their disadvantage.
  • treating them differently than others.
  • not hiring them.
  • offering them different (and unfair) terms and conditions, compared to other employees.

What is a discriminatory attribute?

An employer must not take adverse action against an employee because of an attribute of that person, including their:

  • race
  • colour
  • sex
  • sexual orientation
  • age
  • physical or mental disability
  • marital status
  • family or carer's responsibilities
  • pregnancy
  • religion
  • political opinion
  • national extraction
  • social origin.

Independent Contractors

Independent Contractors are also covered by the general protection provisions in the Fair Work Act 2009.

Precautions must be taken not to discriminate or adversely affect the working conditions of contractors, particularly where the contractor has exercised a workplace right, is entitled to pay or is associated with a union.

An employer must not tell an employee that they are being hired as a contractor if they are really an employee.

An employer must not dismiss or threaten to dismiss an employee in order to hire them as an independent contractor doing the same or substantially the same work.

Risks For Employers

A person (such as an employee) simply need to allege that they were 'adversely affected' by a management decision to make a General Protections Claim.

Employers have a reverse onus of proof to defend a General Protections Claim. Meaning you are effectively liable until proven otherwise.

Avoiding General Protections Claims

Employers can minimise the risk of General Protections Claims by:

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