A regular part of the support we provide to employers is helping them to manage the risks associated with employee terminations.While most of the time this involves us providing information and guidance to employers to prevent/defend potential Unfair Dismissal Claims by aggrieved former employees, we often also need to help them manage the risks associated with another type of claim: General Protections Claims.
This article explains the key features of General Protections Claims, provides some practical examples and highlights why it’s important that employers consider their potential exposure to these types of claims (as well as Unfair Dismissal Claims) before making decisions that might result in an employee termination or other action that may later be subject to challenge.
The article also includes a few tips for protecting your business against potential General Protections Claims.
What might give rise to a General Protections Claim?
A General Protections Claim might arise where an aggrieved current or former employee feels that the employer has taken (or has threatened to take) some form of adverse action against them because they have a workplace right, exercise such a right or, in some cases, intend to exercise such a right.
What are Workplace Rights and Adverse Actions?
A workplace right is an entitlement usually granted by an Act (such as the Fair Work Act) or instrument (such as an Award), and the freedom of an employee to exercise and enforce those entitlements. While this article focuses on the workplace rights of employees, employers and independent contractors also have workplace rights.
Generally speaking, adverse action is any conduct that disadvantages another person. Adverse action could include dismissal, but it can also be any kind of negative conduct towards an employee (e.g.: demotion, reducing the number of shifts or number of hours an employee works, or deciding not to pay a discretionary bonus to an employee).
What does it all mean in practice?
General Protections Claims are probably best explained via a few examples.
An employer may be exposed to a General Protections Claim, for example, where they:
- dismiss an employee in response to the employee querying their pay or conditions of employment
- reduce the number of shifts or overtime available to an employee because they made a complaint about something that happened in the workplace
- terminate an employee for accessing their available leave entitlements
- do not provide an employee with access to the same training opportunities as other staff because the employer sees them as a “trouble-maker”, or
- unilaterally transfer the employee to another team because they made an allegation of bullying against a member of their existing team.
What else do I need to know about General Protections Claims?
- Unlike Unfair Dismissal Claims, an employee does not need to have passed a minimum employment period in order to make a General Protections Claim. An employee terminated after say just 2 weeks of employment, for example, can make a General Protections Claim if they feel they were terminated for a prohibited reason. Where a General Protections Claim involves dismissal of an employee, the employee needs to lodge the claim within 21 days of the date of dismissal.
- Unlike Unfair Dismissal Claims which are capped at 6 months pay, compensation potentially awarded to an employee (or former employee) by an employer found to be at fault following a General Protections Claim is not capped and may include compensation for non-economic loss such as hurt, humiliation and distress. Some payments in these cases have exceeded $500,000.
- An employee who has been dismissed cannot make both an Unfair Dismissal Claim AND a General Protections Claim.
- In defending a General Protections Claims, it is up to the employer to provide evidence that demonstrates their decision to take adverse action against the employee making the claim was not for a prohibited reason.
What can I do to manage the risks of a General Protections Claim?
- If you’re an employer considering making a decision which might have an adverse impact upon an employee, be sure to consider if there are any issues “in play” that may give rise to a General Protections Claim. Consider, for example, if there are any outstanding/open complaints, grievance or queries relating to the employee. If so, and assuming they are not relevant to the issue giving rise to the decision you are considering, be sure to “close out” those complaints, grievances or queries prior to taking any decision that may impact the employee adversely.
- When communicating the decision to the employee, put the decision and the reason for the decision, in writing to the employee. Of course, the reason for the decision must be valid and have nothing to do with the employee concerned having a workplace right, exercising such a right or, in some cases, intending to exercise such a right.
- Seek professional guidance prior to taking a decision which may have an adverse impact upon an employee.
This is general information only and must not be considered professional or legal advice. If you’re an employer and need support that takes into account your particular circumstances, please contact us directly.