Under the Fair Work Act 2009, no person shall take adverse action against another for having, exercising, or offering to exercise workplace rights.
What is a general protection claim?
A general protection dispute arises when an adverse action is taken or threatened to be taken because a person owns one of these rights, exercises such a right, or in some cases proposes to exercise such a right.
For example, if an employee is fired, he or she can claim a breach of the General Protection Clause and can show that the dismissal was because he or she took temporary leave due to illness. An employee cannot claim to have violated the General Protection Clause simply because he or she was dismissed while on temporary leave due to illness.
General protection claims can also be brought by potential employees, independent contractors, or people who have contracted for services. Most general protection disputes involve employees and their employers.
Employees who claim they were fired for workplace rights must file a general protection claim within 21 days of being fired. There is no eligibility period or compensation cap for general protection claims. This means that general protections victoria apply from the time an employee is hired, and in some cases before the employee is hired, and regardless of the employee’s income.
There is no prohibition on employers from taking adverse actions against the employees themselves. However, if the employer intends to take any action against the employee that may be detrimental to the employee (i.e. dismissal, demotion, salary/bonus reduction), the employer must ensure that there is no link of any kind between the action and the actions the employee has exercised or intends to exercise Workplace rights.
What you need to know about general protection claims and why
Part of our support to employers is to help them manage the risks associated with an employee dismissal. While in most cases this involves us providing information and guidance to employers to prevent/defend potential unfair dismissal claims from aggrieved former employees, we often also need to help them manage the risks associated with another type of claim: General Protection Claims. This article explains the main features of general protection claims, provides some practical examples and highlights why it is important for employers to consider these types of claims (and unfair dismissal claims) they may face before making decisions that could result in employee dismissal or Other actions that may later be questioned. This article also includes tips to protect your business from potential general protection claims.
What might give rise to a general protection claim?
If an aggrieved current or former employee believes that their employer has taken (or threatened to take) some form of adverse action against them because they have workplace rights, exercise such rights, or, in some cases, intend to exercise such rights.
What are workplace rights and adverse behavior?
Workplace rights are rights usually granted by an act (such as the Fair Work Act) or instrument (such as an award), and the freedom of employees to exercise and enforce these rights. While this article focuses on employees’ workplace rights, employers and independent contractors also have workplace rights. Generally speaking, unfavorable behavior is any behavior that is detrimental to another person. Adverse behavior may include dismissal, but may also be any negative behavior toward an employee (eg: demotion, reducing the number of shifts or hours an employee works or deciding not to pay an employee a discretionary bonus).
What does this mean in practice?
The general declaration of protection is probably best explained by a few examples. Employers may face general protection dispute claims, for example, if they:
Fire employees in response to employee inquiries about their wages or employment conditions. Reduce the number of shifts or overtime available to employees because they complain about what happened in the workplace. Fire an employee to access their available leave entitlements Not providing employees with the same training opportunities as other employees because the employer sees them.
What else do I need to know about general protection claims?
Unlike unfair dismissal claims, employees do not need to pass a minimum employment period to file a general protection claim. For example, if an employee is fired after only 2 weeks of employment, they can file a general protection claim if they believe they were fired for prohibited reasons. If a general protection claim involves the dismissal of an employee, the employee needs to file the claim within 21 days from the date of dismissal.
Unlike unfair dismissal claims that are capped at 6 months salary, there is no cap on the compensation an employer may award to an employee (or former employee) after a general protection claim is found to be at fault, and may include compensation for non-economic loss, For example as hurt, humiliation, and pain. In these cases, some payments have exceeded $500,000. A fired employee cannot file both an unfair dismissal claim and a general protection claim. In defending a general protection claim, employers should provide evidence that their decision to take adverse action against the employee making the claim was not for prohibited reasons.
What can I do to manage the risk of general protection claims?
If you are an employer considering making a decision that could adversely affect employees, be sure to consider whether there are any “in play” issues that could trigger a general protection claim. For example, consider if there are any pending/pending complaints, grievances, or questions related to the employee. If so, and assuming they are not related to the issues that led to the decision you are considering, be sure to “close” these complaints, grievances, or inquiries before making any decisions that could adversely affect the employee.