Did you know?
Disgruntled dismissed employees are increasingly lodging General Protections (GP) applications instead of Unfair Dismissal actions. General Protections were introduced in July 2009 under the Fair Work Act to protect employees rights including the right to engage in industrial activity, to be free from unlawful discrimination and to be free from undue influence/pressure in negotiating individual arrangements. See Fair Work Ombudsman website for more details.
Why does this matter?
Unlike unfair dismissal claims, GP actions don’t require employees to meet a number of required conditions before they can be lodged. GP actions don’t even require termination of employment, only ‘less favourable treatment’.
In GP actions, the responsibility or ‘onus’ is also placed on the employer to prove that the termination or adverse action against the employee was not based on the employee’s possession of a particular workplace right. For example, an employer would have to prove that an employee was dismissed based on poor performance, not due to their union involvement.
Unfair dismissal claims cannot be made by an employee who has been employed for less than 6 months. However, GP claims hold no such time restrictions, and can be made at any time.
GP matters also extend to prospective employees, not just current ones and so an individual could take a GP action against an employer if they were not employed on the basis of a workplace right.
Current trends in Australia
From 2011-2014, General Protections involving dismissals grew from 2429 cases in 2011-2012 to 2879 in 2012-2013. This is an increase of 18.5%. Unfair dismissal lodgements however decreased 0.1% from 14 818 to 14 796 during the same time periods.
While more unfair dismissal cases are being lodged than GP matters, the former is stagnating while the number of GP claims is rising.
Why you should be worried that GP is rising
GP cases do not have capped compensation, unlike Unfair Dismissal cases where compensation is limited to 6 months salary, which in most cases is capped at $66,500.
As we mentioned above, it is the employer’s responsibility to prove their innocence i.e. that the dismissal or action did not infringe the employee’s workplace rights. This can be a huge challenge without comprehensive records or evidence.
For example, a client employed an individual with good references, but soon the employee’s performance went downhill. The employee began to use up all their sick leave with frequent unexplained days off. When the employee was warned about their behaviour, they began to suffer a variety of alleged workplace injuries, stopped working altogether and then went on workers’ compensation. The employer repeatedly attempted to consult with the employee, who claimed he was suffering from workplace stress as a result of harassment and threatened to take a GP action against the employer.
What you can do to help prevent GP action against you
1. Document all disciplinary actions with the employee
Make sure all warnings and disciplinary actions are in writing. Invite the employee to have a support person during the meeting or have your own witness. Having concrete evidence supporting your position makes your decision to terminate the employee much easier to defend.
2. Give official warnings
Before dismissing an employee, give them at least one official warning about their behaviour. This gives them an opportunity to change their behaviour and understand that their behaviour is the issue.
3. Give a concrete and genuine reason for termination
If you don’t give the employee a reason for termination, they could take their hurt, confusion and anger out on the employer. Though it can be challenging to tell somebody they are not performing to your business’s standards, if you are honest up from the start it can protect you in the longer term.
Want more information?
Contact us today at 1300 55 66 37 or here.