Disgruntled dismissed employees are increasingly lodging General Protections (GP) applications compared to Unfair Dismissal actions, despite unfair dismissals still being more common overall.
General Protections claims were introduced in July 2009 under the Fair Work Act 2009 to protect a person that has a “workplace right”, and this includes the right to –
- be free from unlawful discrimination, harassment and bullying
- be protected from unlawful dismissal or injury or refusal of employment
- engage in industrial activity, or not to,
- make a complaint about an aspect of their employment, and
- be free from undue influence/pressure in negotiating individual agreements and arrangements.
Current trends in Australia
General Protections
General protections claims involving dismissals in 2021-2022 were 5,010 and when we compare this to the current 4,102 in 2020-2021, there is a significant increase of 22% over the past year.
In terms of general protections involving ‘other than dismissal’, it was sitting at 940 cases back in the period of 2015-1016. When compared to the figures in 2019-2020, of 1050, this was an increase of 11.7% over the past 4 years.
Unfair Dismissals
Unfair dismissals claims back in 2018-2019, were 13,928 and when we compare this it to the current 13,096 in 2021-2022, shows a decrease of 6% over the past 4 years but much less than the increase in general protections claims. While more unfair dismissal cases are being lodged than general protections matters, the unfair dismissals are decreasing while the general protections claims are rising.
Why does this matter to employers?
- Unlike unfair dismissal claims, the applicant in a general protections action can make a claim and not necessarily provide any proof, just allegations (Fair Work Act 2009 [Cth] s361).
- General protections actions do not require termination of employment, only ‘less favourable treatment’ by the employer towards the employee, prospective employee (who has not even started) or even a contractor.
- In general protections actions, the ‘onus of proof’ is 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.
- Whilst unfair dismissal claims cannot be made by an employee who has been employed for less than 6 months (12 months for small businesses), general protections claims hold no such time restrictions.
- General protections 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 $81,500 (as of 1 July 2022) for higher income earners.
- Unfair dismissal cases have a salary cap (for non-award employees) above which high-paid employees cannot make a claim, whereas general protections claims have no such cap or requirement to be award-covered.
- As we mentioned above, the burden of proof is on the employer. This can be a huge challenge without comprehensive records or evidence as to the real reasons the employee was dismissed or treated less favourably.
Federal Court Action
Please click here for our recent article on a recent Federal Court Case example of how ‘general protections claims’ can be used as a weapon by the employee and can result in huge payouts by the employer.
How to prevent general protections claims?
1. Document all disciplinary actions with the employee, have a witness/support person present, and provide evidence to the employee about their performance, even when not strictly required e.g. for unfair dismissal reasons.
2. Provide official warnings, clear reasons, and an opportunity to the employee for improvement or a change of behaviour.
3. Provide a concrete and genuine reason for termination even if the employee is in their probationary period/minimum employment period. This way the employee is clear about the reasons why and prevents them from making up a reason.
Getting Our Help
If you have any questions or need assistance with any employee claims or complaints, we encourage you to call ER Strategies on 1300 55 66 37.
If you want to read more about how to protect your business from general protections, take a look at our blog here.
