General Protections laws are intended to protect basic workplace rights, including freedom of association and shielding workers from workplace discrimination in accordance with international labour conventions. Under these laws, it is unlawful to take adverse action against a person because of a proscribed reason. Additionally, General Protections laws provide effective relief for persons who have suffered adverse actions, such as being discriminated against, victimised, or have experienced other forms of unfair treatment.
What is Adverse Action?
An adverse action can include dismissal, demotion, injuring a person’s employment, altering an employee’s job to their detriment, and discriminating between an employee and other employees.
What are the General Protections (Proscribed Reasons)?
The General Protections outline a long list of reasons or attributes that people cannot be discriminated against for, or suffer any adverse actions, such as being dismissed or not being hired, because of those reasons. Some of these attributes include a person’s:
- Race
- Sexual orientation
- Age
- Religion
These General Protections have a wider application, then with unfair dismissals, and there is no minimum employment period that needs to be met. The General Protections apply to:
- Employers (both current and prospective)
- Employees (both current and prospective)
- Independent Contractors (whether a contract has been entered into, or is proposed)
- Industrial Associations (such as unions) and their Members or Officers.
General Protections also ensure that someone cannot be discriminated against for utilising their workplace rights. Workplace rights for employees include being able to:
- Make complaints or inquiries about their employment
- Commence or participate in a process under a workplace law instrument, such as taking court action
- Receive the rights and benefits from any agreement, awards, legislation, or court order.
Furthermore, General Protections will also protect against those involved in industrial activities from being discriminated against for their actions. Rights relating to industrial activities also include the:
- Freedom to associate and choose whether to become a member of industrial relations
- Representing or advancing views, claims or interests of an industrial association
- Taking part, or refusing to take part, in industrial action.
There are two different types of general protections disputes: General Protections dismissal disputes and General Protections non-dismissal disputes. General Protections dismissal disputes cannot be heard by a court without the parties first having a conference at the Fair Work Commission, however this does not apply to non-dismissal disputes.
What happens with a General Protections dismissal claim?
In a General Protections dismissal claim, the Commission will lead a private conference to deal with the dismissal. Often, the parties are generally unrepresented, however with the permission of the tribunal, may seek to be represented by a lawyer or paid representative. Both parties are prompted to come a mutually agreeable resolution. However, if this isn’t resolved in the conference, and the Commission is satisfied all reasonable attempts to resolve the dispute have been unsuccessful, and there are not jurisdictional objections in play, then the Commission issues a certificate stating as such. Following this, if both parties consent, the Commission can then arbitrate on the case and make a final decision. If one or both parties don’t consent to the arbitration, an applicant can choose to progress their matter by making an application to the Federal Circuit Court or Federal Court.
If the matter does go before the Courts, then they have the ability to enforce General Protection laws, and if someone is found to have breached these laws, they can order both remedies and penalties. Including:
- Pecuniary penalty (fine)
- Order for reinstatement
- Order awarding compensation for loss
- Injunction or interim injunction
- Award costs against a party to the proceedings.
If you are looking to dismiss an employee take a look at this blog here.
What is the maximum payout from a General Protections claim?
General Protections claims can be quite costly to a business due to the expense associated with the negotiation, arbitration, or litigation of the issue. Furthermore, whilst there is a cap on unfair dismissal claims, General Protections do not have a prescribed cap on damages. Compensation is determined on either the settlement fee paid out or the punishment handed down by the Courts, which includes any pecuniary penalty, compensation or costs. The General Protections claim payout will depend on the severity and impacts the treatment of the employee had on them and their future and will also consider lost remuneration.
In some cases, this amount can be significant due to long lasting impacts on a person’s ability to earn an income in the future. employee $5.2 million. In this case (which is currently under appeal), the employee alleged, and the Commission agreed, that they were dismissed due to the employee’s claims that the employee was being bullied. Given the employee’s high salary and impacts the adverse actions had on the employee’s ability to continue to work, the Court arrived at the $5.2 million figure for the compensation.
In another case, Masson-Forbes v Gaetjens Real Estate Pty Ltd [2015] FWC 4329, a Real Estate business was ordered to pay $17,451 for remuneration lost by the employee for their dismissal, together with $3,000 for non-economic loss. In this case, the employee alleged they were forced to resign, after being placed on an unrealistic and punitive performance improvement plan, shortly after returning from a period of illness.
ERS Comment
These cases highlight the point that businesses should be taking steps to ensure they don’t subject themselves to General Protections claims. Even without having to make a payout, there will often be costly legal fees associated with any legal proceedings. ER Strategies is here to assist businesses in managing their employment compliance to help you avoid making mistakes leading to General Protections claims. Take a look at our WorkShield packages now to access our great range of services at a price that suits your business. Click here!
