Beware the Rise of General Protections

General Protections Claims rather than Unfair Dismissal Actions?

” Did you know disgruntled dismissed employees are increasingly lodging General Protections (GP) applications instead of Unfair Dismissal actions? “

Disgruntled dismissed employees are increasingly lodging General Protections (GP) applications instead of Unfair Dismissal actions. 

General Protections claims were introduced in July 2009 under the Fair Work Act to protect “employee rights”, including the right to –

  • be free from unlawful discrimination,
  • engage in industrial activity or complain about an aspect of their employment, and
  • be free from undue influence/pressure in negotiating individual arrangements. 

Current trends in Australia

General Protections involving dismissals grew from 3,270 cases in 2015-2016 to 4,117 in 2017-2018. This was an increase of 25.9% over a relatively short timeframe.

General Protections involving ‘other than dismissal’ also grew from 940 cases in 2015-2016, to 992 in 2017-2018. This was an increase of 5.5%.

Unfair dismissal lodgements decreased by 8.1% from 14,694 to 13,595 during the same 3-year time period.

General Protections involving dismissals had previously grown from 2,429 cases in 2011-2012, to 2,879 in 2012-2013. 

While more unfair dismissal cases are being lodged than GP matters, the former is stagnating while the number of GP claims is rising.

Why does this matter to employers?

  • Unlike unfair dismissal claims, GP actions don’t require employees to meet a number of required hurdles before they can be lodged. GP actions don’t even necessarily require termination of employment, only ‘less favourable treatment’ by the employer towards the employee, prospective employee or even a contractor.
  • 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 specific 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 or temporary absences from work due to illness or injury.
  • Unfair dismissal claims cannot be made by an employee who has been employed for less than 6 months (12 months for small businesses). 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 based on possession of a workplace right, even if they were not yet employed.
  • GP cases do not have capped compensation, unlike Unfair Dismissal cases where compensation is limited to 6 months salary, which in most cases is further capped at $72,700 (as at 1 July 2018) for higher income earners.
  • 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.

Example of how GP claims can be used as a weapon against their employer 

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 then threatened to take a GP action against the employer.

Federal Court Action

One saving feature of defending GP dismissal claims is that the Fair Work Commission is required to conciliate the matter first, in order to attempt to resolve it (the exception is where the employee is seeking an interim injunction).

Unless the employer specifically gives the Commission the power to arbitrate the dispute, in most cases the Commissioner can’t impose an arbitrated outcome. If dissatisfied with the outcome of the conciliation process, the employee will then need to apply to the Federal Court or the Federal Circuit Court for an order from the court, which can involve the employee in significant additional expense – unless of course they have engaged one of the many law firms offering ‘no win, no fee’ services.

What you can do to help prevent GP actions 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 of having raised performance issues makes your decision to terminate an employee much easier to defend from GP claims. 

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 can often take their hurt, confusion and anger out on the unfortunate employer. Although it can feel challenging to have to tell somebody they are not performing to your business’s standards, if you are honest from the start it can protect you from defending a bigger problem in the longer term.

Note – the above is intended as a summary of the law only and action should not be taken based on it without first seeking advice.

General Protections unfair dismissal (2)

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Need to let an employee go? Use our letter of termination template to ensure you are using the correct format. 

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