As an employer, receiving notice of general protections claims can seem unexpected and overwhelming. Many different people in the employment relationship can make a general protections claim; however, they are commonly made by employees. If you have received a notice of a general protections claim that an employee has made against your business, you may not know where to begin. This article will discuss a general protections claim and what to expect if you have received one from an employee.
What Is a General Protections Claim?
General protections claims are legal proceedings a person (usually an employee) initiates against another person (usually an employer). Typically in a general protections claim, the employee is claiming that you have taken adverse action against them, such as demotion or termination, because of their:
- attributes, such as race or religion;
- exercise of a workplace right; or
- engagment in industrial action.
An employee can initiate a general protections claim regardless of whether they still work for your business or have been dismissed. There is no minimum period that the employee must have worked for you to bring the claim. Even small businesses can be subject to general protections claims.
Resolving a General Protections Claim Dispute
You should follow the below steps to resolve a dispute with your employee regarding the general protections.
Your Employee Brings the Claim
The employee brings a general protections claim by lodging an application with the Fair Work Commission (FWC). If the claim involves a dismissal, they will have 21 days from the dismissal date to make a claim unless exceptional circumstances apply. The commission does not assess the merits or substance of the claim at this point.
Notification of the Claim
The FWC will contact you with details of the claim and propose a conference date. You usually have seven days to respond to the general protections claim by completing a form setting out your response to the application and returning it to the FWC.
The form will ask you the following questions:
- Do you have any jurisdictional objections to the claim?
- Do you agree to take part in the conference convened by the Commission?
- What is your response to the outcome that the employee is seeking?
- What is your response to the alleged contravention set out in the form?
The next steps depend on whether you have dismissed your employee or if they still work for your business.
Conference Proceedings In the Case of a Dismissal
If you believe that your employee is ineligible to make a general protections claim, you may make a jurisdictional objection in your initial response. These objections are not a matter of whether you believe that there has been a breach of the provisions but rather only relate to your employee’s eligibility to make a claim. The relevant jurisdictional objections you may raise include that the:
- application is made beyond the 21-day timeframe from the date of dismissal;
- applicant failed to allege that the dismissal was a contravention of the general protections provisions in their initial application;
- individual has already made another application in relation to the dismissal, such as lodging an unfair dismissal claim with the FWC; and
- person was not dismissed according to the Fair Work Act because they were either not an employee, not dismissed or the employer is not a national systems employer.
When you have a jurisdictional objection, the case will be referred to an FWC member, who will decide the objection. A member may schedule a jurisdictional hearing to decide your objection. If they dismiss your objection, the case continues to a conference.
A conference is an informal proceeding, usually conducted over the phone, between you and:
- your former employee;
- your former employee’s representatives; and
- a member of the Fair Work Commission.
You will be notified of the conference date when you receive the general protections claim.
The FWC member will assist you and your employee in reaching an agreement in the form of a binding contract.
If you cannot resolve the dispute at the conference, you can opt for arbitration. Arbitration is an informal proceeding similar to a court hearing. The commission member can hear witnesses and consider written submissions and evidence. The commission member will make a binding decision at the end of voluntary arbitration.
Conference Proceedings In the Case of No Dismissal
Unlike in cases where a dismissal occurs, you and the employee need to agree to hold a conference. A voluntary conference will be held with the commission member to resolve the dispute if both parties agree. There is also no option to settle the matter by voluntary arbitration in cases where there is no dismissal.
As an employer, understand your essential employment obligations with this free LegalVision factsheet.
Types of Court Orders
There are a couple of orders that a court can make, which include:
- reinstating the employee (if the case involves a dismissal),
- compensating the employee for economic loss and awarding damages for hurt, humiliation and distress;
- issuing a fine; and
- granting an injunction or interim injunction.
Key Takeaways
If you have received a notice of a general protections claim, you will have seven days to submit a response. If the claim involves a dismissal and there are no jurisdictional objections, the matter will progress to a mandatory conference and voluntary arbitration before a court hearing. A conference is voluntary when there is no dismissal, and proceedings can go straight to a court hearing.
If you have any questions about how to respond to a general protections claim, our experienced employment lawyers can assist as part of our LegalVision membership. For a low monthly fee, you will have unlimited access to lawyers to answer your questions and draft and review your documents. Call us today on 1300 544 755 or visit our membership page.
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