What is a General Protections Claim?
Under the Fair Work Act 2009, a person must not take adverse action against another person, because that other person has a workplace right, exercises a workplace right, or proposes to exercise a workplace right.
What is a Workplace Right?
The term 'workplace right' has a broad meaning. A person has a workplace right if he or she:
- has an entitlement under a workplace law or a workplace instrument such as an award or enterprise agreement
- is able to initiate a proceeding under a workplace law or workplace instrument
- is able to make a complaint or inquiry in relation to their employment.
What is Adverse Action?
Adverse action includes dismissing or refusing to employ someone, discriminating against them, or otherwise injuring them in their employment (for example, by demoting them, or reducing their overtime or ordinary hours of work).
What is a General Protections Claim?
A general protections dispute occurs when adverse action is taken - or when a threat to take adverse action occurs - because a person has one of these rights, exercises such a right or, in some cases, proposes to exercise such a right.
For example, an employee may claim a breach of the general protections provisions if he or she is dismissed and can show that that the dismissal was because he or she had taken temporary leave due to illness. An employee cannot claim a breach of the general protections provisions simply because he or she was dismissed while on temporary leave due to illness.
Given the above, it is vital that a person is able to show that there is a connection between the adverse action and the workplace right.
A General Protections Claim can also be made by a prospective employee, an independent contractor or a person who has entered into a contract for services. Most general protections disputes involve an employee and their employer.
An employee who claims to having been dismissed in connection with a workplace right must file a General Protections Claim within 21 days of the dismissal. There are no qualifying periods or remuneration caps for a General Protections Claim. This means general protections apply from the start of an employee’s employment and, in some cases, before the employee is employed, and apply no matter what the employee earns.
Summary
There is no prohibition on a employer taking adverse action against an employee in itself. However, if an employer intends to take any type of action against an employee that will operate to disadvantage the employee (i.e dismissal, demotion, reduction of pay / bonuses), the employer must ensure that there is no connection of any kind between that action, and a workplace right that the employee has, has exercised, or proposes to exercise.
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