If you are an employer, you have probably heard of an unfair dismissal claim, but what is a general protections claim? Like unfair dismissal claims, general protections claims are also made through the Fair Work Commission. However, unlike unfair dismissal claims, the person making a general protections claim does not necessarily have to be dismissed, and in some circumstances does not have to be an employee. This article will explain:

  • what a general protections claim is;
  • what the general protections are; and
  • the consequences of a successful general protections claim against your business.

This article will focus on general protections you should, as an employer, consider in your dealings with employees and prospective employees.

Who Do the General Protections Apply To?

The general protections apply to anyone in the employment relationship, including:

  • employees, including prospective employees;
  • employers, including prospective employers;
  • independent contractors; and
  • principals.

Any of these people can bring a general protections claim against your business.

The General Protections

The general protections are a set of workplace rights that are designed to protect people in an employment relationship. A general protections claim is a claim that someone in the employment relationship has breached one of the general protections.

A person must not take adverse action against another person because of an attribute of that person.

Another way to describe this general protection is that a person must not be discriminated against because of factors such as their:

  • age;
  • race;
  • sex;
  • sexual orientation;
  • pregnancy;
  • religion; or
  • physical or mental disability.

A person must not take adverse action against another person for exercising a workplace right.

This general protection protects employees from having adverse action taken against them for exercising their workplace rights.

For example, exercising their right to:

  • make an enquiry or complaint about workplace conditions;
  • ask to be paid in line with the correct award rate;
  • ask for correct safety procedures and equipment; or
  • commence Fair Work proceedings.

A person must not take adverse action against another person for engaging in industrial activities.

People are protected from adverse action in the workplace for engaging (or not engaging) in industrial activity. For example:

  • joining a union;
  • participating in strikes; or
  • refusing to participate in industrial action.

What Constitutes Adverse Action?

A general protections claim will usually centre around “adverse action” you have taken because the employee has:

  • exercised a workplace right;
  • engaged (or not engaged) in industrial activity; or
  • been adversely affected because of their features.

Adverse action is not limited to termination. It can include any negative action that disadvantages a person in the workplace. For employees, this could be dismissal, demotion or discrimination against them, whether by other employees or by you, their employer. If the person is a prospective employee, adverse action could be discrimination they have suffered during the hiring process.

A key element of general protections claims is that the adverse action against the employee or prospective employee must occur because of the “protected reason”.

For example, if you dismiss an employee who is pregnant and commits theft, the adverse action (termination) must be taken because of the serious misconduct and not because the employee is pregnant.

If you plan on taking adverse action against an employee for misconduct or performance-related issues, you should ensure that you have valid grounds for the adverse action. Also, ensure that you correctly carry out the action. This is particularly important if they have recently exercised a workplace right or participated in industrial action.

Can Small Businesses Be Subject to General Protections Claims?

Small businesses (businesses with fewer than 15 employees) are also subject to general protections claims. In unfair dismissal cases for small businesses, the employee must have worked for the employer for at least 12 months to make an unfair dismissal claim. In a general protections claim, there is no such time restriction. Even prospective employees who have never worked for you can bring a general protections claim.

What Should I Do if I Receive a General Protections Claim?

From when you receive notice of a general protections claim from the Fair Work Commission, you will normally have seven days to submit your response. It is critical that you do not ignore a claim. If you fail to respond, the court could file an adverse judgement against you.

What Are the Consequences for Breaching the General Protections?

The orders that a court or the Fair Work Commission can impose on a business can vary. This could be an order that you reinstate or compensate the affected employee.

Unlike unfair dismissal claims, a court can also impose a penalty against you in a general protections claim. The penalty will vary depending on the severity of the breach, but it can be up to $63,000 per breach for a corporation or up to $12,600 per breach for an individual. This penalty is in addition to any compensation that you need to pay.

Key Takeaways

A general protections claim is a claim that someone (for example, you, the employer) has wrongly taken adverse action against another person (such as an employee) in the employment relationship and breached one of the general protections. Anyone in the employment relationship can make a claim, including employers and employees, prospective employers and employees, principals and contractors. If someone makes a general protections claim against your business, you will need to respond within seven days of receiving the claim. 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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