At a Glance
- General protections shield employees from adverse action based on workplace rights or discrimination
- Adverse action includes dismissal, demotion, or any treatment that disadvantages an employee
- Employers cannot take action against staff for taking sick leave or joining a union
- The 'reverse onus of proof' means employers must prove their reasons were lawful
- Claims must be lodged with the Fair Work Commission within 21 days for dismissals
What are General Protections?
Under Part 3-1 of the Fair Work Act 2009 (Cth), general protections are designed to protect workplace rights, promote freedom of association, and provide protection from workplace discrimination. Unlike unfair dismissal claims, which focus on whether a termination was 'harsh, unjust or unreasonable', general protections claims focus on the reason why an action was taken.
These laws apply to employees of most national system employers in Australia, including the vast majority of private-sector employees, regardless of their hours of work or level of remuneration.
Defining 'Adverse Action'
To trigger a general protections claim, an employer must have taken, or threatened to take, 'adverse action' against an employee. Adverse action is a broad term that covers:
- dismissing an employee;
- altering an employee's position to their prejudice: such as a demotion or a reduction in hours;
- refusing to employ a prospective employee;
- discriminating between an employee and other employees.
If an employer takes such action because the employee exercised a 'workplace right', the law has been breached.
Workplace Rights and Discrimination
A workplace right exists if an employee is entitled to a benefit under a law or contract, such as taking annual leave, or if they make a complaint or inquiry about their employment.
Common grounds for general protections claims include:
Exercise of Workplace Rights
An employer cannot punish an employee for asking about their pay, filing a workers' compensation claim, or complaining to a manager about safety issues. In the case of Barnett v Territory Insurance Office, the court clarified that making an inquiry about one's own employment is a protected activity that should not result in termination.
Temporary Absence due to Illness or Injury
The Act specifically prohibits dismissing an employee because they are temporarily absent from work due to a prescribed illness or injury. Generally, the law prohibits an employer from dismissing an employee because the employee is reasonably absent from work due to a temporary illness or injury, provided that the employee has supplied the required medical evidence and the absence falls within the statutory definition of “temporary absence.”
Discrimination
It is unlawful to take adverse action against an employee because of their race, colour, sex, sexual orientation, age, physical or mental disability, marital status, family or carer's responsibilities, pregnancy, religion, political opinion, national extraction, or social origin.
The Reverse Onus of Proof
One of the most unique and challenging aspects of general protections law is the 'reverse onus of proof'. Once an employee proves that they had a workplace right and that adverse action was taken against them, the law presumes the action was taken for an unlawful reason.
The employer must demonstrate that the protected right or attribute played no substantive part in the decision-making process, and that the action was taken for lawful and independent reasons. This was highlighted in the High Court case of Board of Bendigo Regional Institute of TAFE v Barclay, where the court emphasised that the focus is on the actual subjective intent of the decision-maker.
Practical Case Example
Consider a marketing manager who frequently complains about unpaid overtime. Shortly after her latest complaint, the company undergoes a 'restructuring' and her role is made redundant. While the company may argue the redundancy was purely financial, the manager may file a general protections claim alleging she was targeted because of her complaints.
Because of the reverse onus of proof, the company directors would need to provide extensive evidence, such as board minutes and financial reports, to prove that the overtime complaints were not even a small factor in the decision to select her for redundancy.
Key Takeaways
- Employees are protected regardless of their length of service or income level
- Making a complaint or inquiry is a protected workplace right
- Employers must be able to prove that their decisions were not motivated by unlawful reasons
- Strict time limits apply: 21 days for dismissal-related claims
Frequently Asked Questions
How long do I have to make a claim?
If you have been dismissed, you have only 21 days from the date the dismissal took effect to lodge a claim with the Fair Work Commission. For non-dismissal cases, the limit is generally six years.
Can I make a claim if I am a casual employee?
Yes. General protections apply to all employees, including casuals, part-time staff, and even prospective employees who have not yet been hired.
What is the difference between this and Unfair Dismissal?
Unfair dismissal looks at whether the firing was fair in the circumstances. General protections look at the 'why': was the reason for the firing a violation of your legal rights or based on discrimination?
What can the court order if I win?
Courts can order reinstatement, compensation for lost wages, and even financial penalties against the employer. Unlike unfair dismissal, there is no cap on the amount of compensation for general protections.
Can a manager be personally fined?
Yes. Under the 'accessorial liability' provisions, individuals involved in the contravention, such as HR managers or directors, can be personally fined in addition to the company.
How We Can Help
Navigating the complexities of the Fair Work Act requires precision and experience. We provide assistance in:
- advising employers on how to manage performance without breaching general protections;
- representing employees who have been unfairly targeted for exercising their rights;
- drafting workplace policies that comply with the Fair Work Act;
- mediation and representation at the Fair Work Commission and Federal Court;
- conducting internal investigations into discrimination or harassment claims.
