FAIR WORK – GENERAL PROTECTION APPLICATIONS: Unfair Dismissal Applications in Disguise?

May 29, 2014

The rights of employees who have been dismissed to claim that they were unfairly dismissed may be reasonably well known. What is less well known, however, is that under the Fair Work Act 2009 (‘the Act’) employees who are dismissed can make an application to the Fair Work Commission (‘FWC’) and also to the Federal Court or Federal Magistrates’ Court seeking re-instatement and/or compensation if they complain that their Employer has breached a General Protection Provision contained in the Act.

The (many) General Protection Provisions in the Act are designed to protect employees in exercising their workplace rights and are divided into the following categories of protections:

  1. workplace rights;
  2. the right to engage in industrial activities;
  3. the right to be free from unlawful discrimination; and
  4. the right to be free from undue influence or pressure in negotiating individual arrangement.

‘Workplace Right’ is defined very broadly. Section 341 of the Act says:

      (1)   A person has a workplace right if the person:

             (a)     is entitled to the benefit of, or has a role or responsibility under, a workplace law,                                            workplace instrument or order made by an industrial body; or
             (b)     is able to initiate, or participate in, a process or proceedings under a workplace law or                                    workplace instrument; or
             (c)     is able to make a complaint or inquiry:

                     (i)    to a person or body having the capacity under a workplace law to seek compliance with                                that law or a workplace instrument; or

                    (ii)   if the person is an employee—in relation to his or her employment.

An employer is prohibited from taking Adverse Action against an employee if the employee is seeking to exercise, or has exercised, a workplace right. ‘Adverse Action’ can include:

Unlike an unfair dismissal claim:

  1. a complaint about breach of a General Protection Provision can be made at any time - there is no 6 month or 12 month waiting period as there is with unfair dismissal claims.  Indeed sub-section 341(2) of the Act states that ‘Prospective employees [are] taken to have workplace rights’.  Therefore it is possible that a prospective employer may breach a General Protection Provision even before the commencement of employment; and
  2. there is no cap on the amount of compensation that can be awarded.

Furthermore, once a complaint is made that an employer has breached a General Protection Provision then, under the Act, the legal onus of proof is shifted to the employer to prove that a breach has not occurred.

In addition to dismissal there are other circumstances that could lead to a complaint being made by an employee that Adverse Action has been taken by the employer resulting in an alleged breach of a General Protection Provision.  The breach of a General Protection Provision can also carry a civil penalty under the Act. This means, in addition to orders for compensation, employers can be fined for their conduct if they are found to have acted unlawfully.

TVP Law can assist you with all matters relating to employment matters, including:

Please do not hesitate to contact us.

The content in this article is intended to provide a general guide to the subject matter only.  Specialist advice should be sought for your specific circumstances.