For many employers, receiving notice of a general protections claim can seem unexpected and overwhelming. Sometimes, the person making the claim may still work for you. 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 what a general protections claim is and what to expect if you have received one. Many different people in the employment relationship can make a general protections claim. However, this article will focus on general protections claim an employee brings against their former or current employer.
What Is a General Protections Claim?
General protections claims are legal proceedings a person initiates (usually an employee) against another person (usually an employer). Typically in a general protections claim, the employee is:
- claiming that you have taken adverse action (such as demotion or termination) against them because of one of their attributes (for example, race or religion);
- exercising a workplace right; or
- engaging 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 time 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
Your Employee Brings the Claim
The employee brings a general protections claim by lodging an application with the Fair Work Commission. 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 Fair Work Commission 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 Fair Work Commission.
The next steps depend on whether the employee has been dismissed, or still works for the business.
In the Case of a Dismissal
When a former employee makes the application to the commission, the commission member will propose a date for a mandatory conference. You will be notified of the conference date when you receive the general protections claim.
If you are unable to resolve the dispute in the conference, you can opt for arbitration. Arbitration is an informal proceeding more similar to a court hearing than the conference. At arbitration, the commission member can hear witnesses and consider written submissions and evidence. At the end of the voluntary arbitration, the commission member will make a binding decision with which you and the employee must comply. Either party can appeal the decision afterwards.
If one or neither party consents to arbitration following the conference, the applicant can choose to make a separate application to a court that can deal with general protections disputes. This is either the Federal Court or the Federal Circuit Court.
In the Case of No Dismissal
If both parties agree, a voluntary conference will be held with the commission member to try to resolve the dispute. Unlike in cases where there is a dismissal, a conference will only be held if both the employee and the employer agree to hold one. There is also no option to have the matter settled by voluntary arbitration in cases where there is no dismissal.
If no conference is held, or a conference is held but no resolution is reached, the applicant can choose to make a separate application to the Federal Court or Federal Circuit Court.
Types of Court Orders
The court can order that you reinstate the employee (if the case involves a dismissal), or compensate the employee.
Unlike unfair dismissal cases, courts can also impose a monetary penalty (a fine) on you depending on the severity of the breach of the general employee protection(s).
Penalties for each breach of the general protections can be up to $63,000 for corporations and $12,600 for an individual involved in the breach. This can be in addition to any compensation payable.
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, the matter will progress to a mandatory conference, and sometimes arbitration, before going to a court hearing. Where there is no dismissal, a conference is a voluntary step, and proceedings can go straight to a court hearing. If you have any questions about how to respond to a general protections claim, get in touch with LegalVision’s employment lawyers on 1300 544 755 or fill out the form on this page.
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