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 claims involving dismissals in 2015-2016 was 3,270 and when we compare this to the current 4,823 in 2019-2020, there is a significant increase of 47% over the past 4 years.
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 claims back in 2015-2016, were 14,694 and when we compare this it to the current 16,558 in 2019-2020, shows a significant increase of 13% over the past 4 years but much less than the increase in General Protections claims.
While more unfair dismissal cases are being lodged than GP matters, the unfair dismissals are rising but not at the same pace to the number of GP claims.
Why does this matter to employers?
- Unlike unfair dismissal claims, the applicant in a GP action can make a claim and not necessarily provide any proof, just allegations (Fair Work Act 2009 [Cth] s361).
- GP 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 GP 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), GP claims hold no such time restrictions.
- 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 $76,800 (as of 1 July 2020) 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 GP 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 ‘GP claims’ can be used as a weapon by the employee and can result in huge payouts by the employer.
What you can do to help prevent GP actions against you
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.