The concept of general protection claims is something not always fully understood by employers and is often confused with unfair dismissal claims. Unfair dismissal laws protect specifically against an unfair, harsh or unjust dismissal. On the other hand, general protection claims are more broad and deal with the fundamental rights of an employee.
General protections are a series of “protections” in the Fair Work Act that aim to:
- Protect the workplace rights of employees
- Protect against coercion, intimidation and misrepresentation
- Protect employees from sham contracting
- Protect freedom of association
- Provide protection from discrimination at work
- Provide effective relief for anyone who is discriminated against, victimised, or otherwise treated unfairly at work
Unlike unfair dismissal claims, there is no cap to the compensation which can be awarded if an employer is found to have breached general protections provisions. It’s not unheard of for employees to seek hundreds of thousands or even millions of dollars in damages.
Additionally, employees can make general protection claims to seek damages for a demotion or reduction of pay/bonuses, not just for instances of dismissal.
For these reasons, general protection claims can be a nightmare for employers to deal with. Understanding what constitutes a general protection claim is the first step employers must take in protecting their business against them.
Key elements of a general protection claim
A general protection dispute occurs when adverse action is taken – or when a threat to take adverse action – occurs within a workplace. Under the Fair Work Act, a person must not take adverse action against another person;
(a) because the other person:
(i) has a workplace right; or
(ii) has, or has not, exercised a workplace right; or
(iii) proposes or proposes not to, or has at any time proposed or proposed not to, exercise a workplace right; or
(b) to prevent the exercise of a workplace right by the other person.
Adverse actions can include dismissing an employee, altering the position of an employee to the employee’s prejudice or discriminating between the employee and other employees.
As found in cases brought before the Fair Work Commission and the Federal Court, specific examples of adverse actions include:
- Refusal to employ a worker when their fixed-term contract expired
- Making changes to a worker’s performance appraisal (removing positive comments and lowering a mark from “pass” to a “fail”)
- Rejecting a worker’s nomination as a health and safety representative
- Suspending all overseas postings
- Suspending IT/internet access
- Removing employee access to a worksite
- Suspending a worker on full pay
- Dismissing an employee based on their race
- Refusing an employee’s right to take paid personal leave
- Lying on a statement made to WorkCover
Reverse onus of proof
Unlike in the case of unfair dismissal claims, there is a reverse onus of proof in general protection claims. The burden of proof instead falls on the employer.
In order for an employer to defend against a general protection claim, they must be able to provide the following:
- Evidence of the decision maker: The employer can provide convincing and credible explanations as to why they took the steps for disciplining/dismissing an employee
- Evidence which is supported by facts: An employer’s decision is supported by documentation and was based on relevant company policies
- Evidence which is supported by witnesses: An employer is able to call material witnesses who can prove disputed allegations
In order to get a better understanding of how general protection claims and the requirements for reverse onus of proof are handled, we can look at recent case outcomes.
Case study #1 – Protection against coercion
Wildman v IMCD Australia (2021)
Mental health issues led to Mr Wildman’s absence from work on paid personal leave. He provided medical certificates to IMCD, however the certificates did not specify the nature of Mr Wildman’s illness. Mr Wildman was terminated for failing to follow a lawful and reasonable direction to attend an independent medical examination (IME). IMCD had formed the view that Mr Wildman was abusing his personal leave entitlements.
Issues considered in the case:
- Were Mr Wildman’s medical certificates sufficient to justify the taking of personal leave?
- Were the directions given by IMCD lawful and reasonable?
- Did IMCD’s directions to Mr Wildman amount to coercion?
Outcome:
It was found that IMCD had taken adverse action against Mr Wildman by first threatening to, and then later, dismissing him because he had exercised his fundamental workplace right to take personal leave. The communications and directions given by IMCD for Mr Wildman to attend an IME displayed a high degree of compulsion which amounted to coercion.
Furthermore, it was found that IMCD had contravened its obligation to provide Mr Wildman 5 weeks’ written notice of termination or payment in lieu of notice.
Case study #2 – Protection against unfair treatment
Roohizadegan v TechnologyOne Limited (2020)
Mr Roohizadegan complained about bullying and harassment against senior employees. In response, his team made complaints about him and that he was underperforming. He was summarily terminated because he was unable to cooperate with his previous three managers, had previous complaints against him and his team were underperforming.
Issues considered in the case:
- Who was the primary decision maker?
- How did the employer deal with the complaints against Mr Roohizadegan and his underperformance?
- What was the substantial operative reason for the dismissal?
Outcome:
Originally, the court held that TechnologyOne had taken adverse action against Mr Roohizadegan for a ‘prohibited reason’, namely, that he had made complaints of bullying and harassment, which was in breach of the general protection provisions. Mr Roohizadegan was awarded $5.2 million in compensation.
However, on appeal the Court agreed with TechnologyOne’s submissions and the award for compensation was reversed. The Full Court held that the original judge had failed to answer the essential question, being, whether TechnologyOne had established that adverse action (being the termination of Mr Roohizadegan’s employment) was not taken for a prohibited reason (being the making of a complaint), by reference to all of the evidence.
As these case studies show, general protection claims are complex. They can be extremely costly to a business, both in terms of time and monetary penalties, especially if appeals are involved.
Strategies for avoiding general protection claims
The best way to defend a general protection claim is to prevent it from being made in the first place. However, this can be easier said than done.
Before dismissing an employee, consider whether they could reasonably claim that the dismissal was in contravention of a general protections provision.
Tips for avoiding a claim include:
- Ensure procedural fairness: Always ensure that any ‘complaints or inquiries’ are properly addressed in accordance with any workplace policy or usual way of dealing with such issues.
- Support reasoning that the action was not taken because of a workplace right: Ensure that any internal documentation relating to the adverse action (e.g. emails to or from the final decision maker or minutes of meetings) clearly sets out the reason for the adverse action. A lack of adequate evidence supporting the lawful reason will count against an employer.
- Communicate reasoning: Communicate the lawful basis for a dismissal to the employee (or contractor) both verbally and in writing, even if the individual is not covered by unfair dismissal laws. Not providing a reason may create an adverse inference against an employer.
Overall, it’s best to seek professional guidance prior to taking a decision which may have an adverse impact upon an employee. For advice, talk to the experts at Harrisons today.
Claire Harrison is the Founder and Managing Director of Harrisons, a flourishing HR consulting business that sprouted in 2009 from Claire’s passionate belief that inspiring leaders and superstar employees are the key success factor to any business. With over 20 years’ experience, Claire has worked as a HR Director of multi-national organisations, as a Non-Executive Board Director, and a small business owner. Claire’s corporate career includes working with companies such as BHP, Westpac, Fonterra and Mayne Nickless.
