How to Defend a General Protection Claim
Since the Fair Work Act 2009 (Cth) came into effect, some employees have been restricted in their eligibility to file an unfair dismissal claim. This has naturally resulted in an increase in the number of 'general protection' claims being filed by employees.
This article will explain what a 'general protection' claim is, and it will provide tips on how to defend a such a claim.
What is a General Protection Protection Claim?
An employee will be eligible to file a general protection claim if an employer has taken adverse action against the employee BECAUSE the employee had a workplace right, or was excersing (or was not exercising) a workplace right.
An employer taking adverse action on its own is not sufficient for an employee to be able to file a claim.
Adverse action means an action that disadvantages an employee in their employment, discriminates against an employee, or alters their position unfavourably, and this can include demoting an employee, reducing their wage, or terminating their employment.
Having a workplace right can involve any of the following:
- the entitlement to a benefit under a modern award or enterprise agreement
- the entitlement to the benefit under a law that regulates the employment relationship (i.e annual leave)
- the role or responsibility under a workplace law or enterprise agreement
- having (or not having) union member / officer status
An employee can exercise a workplace right in many ways, including by:
- requesting flexible working arrangaments
- making a complaint or inquiry in relation to their employment
- organising, promoting, encouraging or participating in lawful activity organised or promoted by a union
As an employer, you are entitled to make changes to your workplace, and these changes may result in adverse action being taken against one or more employees. However, such action will NOT be unlawful unless the action was taken BECAUSE the affected employees had a workplace right, or were excersing (or not exercising) a workplace right.
When an employee makes a general protection claim - a reverse onus of proof applies. This means that once the claim is made in the Commission or Court, the burden of proving that the claim is not justified will lie on the employer, and the presumption that the claim by the employee is justified will remain unless and until the employer is able to demonstrate that the adverse action was either not taken at all, or was taken for a lawful reason that was not related to a workplace right of the employee.
TIPS FOR PROTECTING YOUR BUSINESS AGAINST A GENERAL PROTECTION CLAIM
As an employer, you will be in a better position to defend a General Protection claim if you have:
1. complied with your business' policies, procedures and practices when taking adverse action (i.e you have been consistent in your approach)
2. removed the person who took the adverse action from the complaint process (i.e the decision maker is a different person to the person who took the adverse action)
3. documented and communicated the reasons for taking adverse action at the time the action was taken
4. ensured that the decision maker is able to provide a convincing explanation as to why the adverse action was taken
The decision maker should be able to communicate:
- that the reasons alleged by the employee were not a factor in the decision to take adverse action
- what the real reasons were for taking the adverse action
- that they would have taken the same action in relation to another employee in the same or similar circumstances who did not have a workplace right, or was excersing (or is not exercising) a workplace right.
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