General Protections

General Protections

We still trust Australia’s Fair work Protections

fair-work-protections-Trust-in-the-workplace-is important-avoid-a-general-protections-or-dismissal-claim
Trust in the workplace is important. Avoid a general protections claim or dismissal claim. Work it out

We still trust Australia’s Fair work Protections

In 2009, the Fair Work Act was passed into law by the Australian Parliament. An initiative of the Rudd Government, the legislation significantly expanded the fair work protections of all Australians and established Fair Work Australia (now the Fair Work Commission) as a tribunal to settle workplace disputes.

Like any politician, Kevin Rudd undoubtedly had his detractors. And those who disagreed with him politically made it known at the ballot box, voting him out of office less than a year after the introduction of the Fair Work Act.

But many of those who voted Rudd out no doubt benefited from or even supported the increased protections his government introduced with the Fair Work Act. This is a theme which consistency plays out in Australian society. That is, we may at times loathe politicians and distrust their policies. But ultimately, most of us still look to Australia (and its government) for support when times are tough, and particularly, for workplace protections.

Fair work Australia

The article follows on from other articles regarding that of Fair work Australia. This Fair work Australia is searched more on Google more than either the Fair work Commission or Fair work Ombudsman. The question is why? This article puts the emphasis on exploring why Fair work Australia seems to be the first phase searched on google. That we still trust in Australia.

We-still-trust-Australia's-Fair-work- Protections-government-taking-care-of- us
People queue up outside a Centrelink office in Melbourne on April 20, 2020. Which delivers a range of government payments and services for retirees, the unemployed, families, carers and parents amongst others. We mistrust the government, (not getting the vaccine by some is an example) but still expect them to take care of us, when we lose our job for not being vaccinated). The general protections and the Fair work Australia regime are important parts of workers rights and government industrial relations laws structure.

In 2022, political cynicism is at an all-time high in Australia

Like many in of the Western world, Australians have become increasingly distrustful and cynical of our politicians. An Australian National University (ANU) study of the 2019 Federal Election reveals that trust in our political system is at an all-time low. Just 59 per cent of Australians are satisfied with the way democracy is working. This is a 27 per cent decrease from the record high of 87 per cent in 2007.

“I’ve been studying elections for 40 years, and never have I seen such poor returns for public trust in and satisfaction with democratic institutions,” said Professor Ian McAllister, lead researcher of the ANU study.

In 2021, Australian Parliament spectacularly failed to live up to our fair work laws

This growing distrust has in recent years been enflamed by a series of sexual misconduct scandals that have rocked Canberra. These scandals demonstrated that despite formulating this nation’s fair work laws, the Australian Parliament often doesn’t live up to them. Particularly when it comes to preventing sexual assault in the workplace.

Parliament was embroiled in so many scandals last year that they collectively warranted their own Wikipedia page. In 2021, the public learned via a whistleblower that members of Scott Morrison’s staff had performed lewd acts inside Parliament House. There were also allegations of historic rape levelled against Liberal Member of Parliament Christian Porter. And in a separate case, an anonymous Labor MP was also accused of historic rape.

Last year also saw perhaps the most famous case of workplace sexual assault in Australian history make headlines. Former Liberal party staffer Brittany Higgins’ allegations of rape against a colleague sparked deep discussions about the toxic workplace culture that exists in Canberra.

The Ideal of Australia

For Australians, these scandals seem to validate what they were already thinking. Namely, that our political system is rife with bad actors, and that maybe our cynicism is warranted. However, despite this growing distrust for politicians, Australians still look up to the ideal of Australia. That is, no matter how much Australian workers may hold our politicians or our political system in contempt, most still rely on and expect Australia (and its government) to deliver the support they need.

On no more grand scale has this theme played out than in the last two years.

fair-work-protections-Significant-workers-rights-in-this- country
We have significant workers rights in this country. Even the Kangaroo’s feel safe.

An unpopular government keeps Australians working through COVID-19 

In March 2020, when the COVID-19 pandemic had just reached Australia’s shores, Scott Morrison was a deeply unpopular prime minister. Only months earlier, he had been ridiculed for his clumsy handling of the devastating bushfires that plagued much of Australia. And this widespread contempt for Morrison only increased as COVID-19 took hold of the country.

In the press, Morrison was slammed as “scared and confused about coronavirus” for not placing Australians in lockdown earlier. But as despised as Morrison was, many of his critics still trusted and expected his government to support them when they suddenly found themselves out of work during our first lockdown in April 2020.

The JobKeeper Scheme provided millions of out of work Australians with a lifeline in the year following the outbreak of COVID-19. Of course, JobKeeper wasn’t perfect. Many criticised the scheme for its flawed design, which in some cases led to companies who weren’t struggling financially to receive a boost to their profits. But ultimately, JobKeeper made good on the government’s promise to Australians – that in their toughest moments, when they are out of work and out of luck, they can rely on Australia to provide them with critical support. 

Compared to the United States, Australia’s workplace protections are lightyears ahead

This trust and idealisation of Australia as a nation that will always come to the aid of its citizens isn’t unique. The same could be said for the United States. Americans, despite being far more politically divided and cynical of its politicians, still have a healthy optimism that their nation will abide by the lofty ideals that make up its Constitution and Bill of Rights.

The United States is of course famous for enshrining freedom of speech in the First Amendment of the Bill of Rights. This is something the Australian constitution lacks. But when it comes to fair work protections, Australia is clearly the more progressive of the two nations.

Fair work Act and protections

The Fair Work Act provides Australian workers with protections that go well beyond those offered by the American legal system. An example of this is the at-will employment laws that exist in every American state except for Montana. This law enables an employer to dismiss an employee for any reason. That is, without having to establish “just cause” for termination, and without warning. The termination, however, must not be for a reason that’s illegal. For example, due to the employee’s race, religion, sexuality or any other protected attribute.

fair-work-protections-We-still-trust-Australia-open-for-business
Australian’s working together, feeling safe and protected, open for business.

On the spot dismissal

In 2016, an unfair dismissal case that came before the Fair Work Commission ruled that the concept of “at-will” does not exist in Australia. The case involved an employee who received an on-the-spot dismissal without explanation. The employer argued that the terms of the employee’s contract justified such a dismissal. However, the Commission ruled that the employer’s “severely flawed approach” subverted the “statutory unfair dismissals laws, and also offend the broader common law position that has developed in Australia.”

Much more so than Americans, Australians can rely on its government for fair work protections. For instance, the Fair Work Act establishes the national minimum wage for all Australians. This is a critical workplace protection that the United States lacks. The United States is also the only industrialised nation yet to introduce statutory agreements for minimum employee leave from work.

Australia continues to strengthen its workplace protections

When it was introduced in 2009, the Fair Work Act significantly overhauled Australia’s existing workplace protection laws. And recent amendments to the Act offer further support for Australian workers, particularly with regard to sexual discrimination and harassment.

In September last year, the Sex Discrimination and Fair Work (Respect at Work) Amendment Act 2021 (Respect at Work amendments) took effect. This amendment updated the Fair Work Act to provide protections to those who experience sexual harassment at work. The changes included defining sexual harassment and introduced stop sexual harassment orders. They clarified that sexual harassment at work can be a valid reason for dismissal. And the changes stipulated that an employee can now access their compassionate leave entitlement if they experience a miscarriage.

We-still-trust-Australia's-Fair-work- Protections-to-stop-sexual-harassment
You should not be dismissed for lodging a claim. If you complain and get mistreated, threatened, its adverse action, lodge a general protections claim

Reporting sexual harassment

A 2018 survey conducted by the Australian Human Rights Commission found that 33 per cent of respondents had reported experiencing sexual harassment in the workplace. Almost two in five women (39 per cent) and one in four men (26 per cent) had done so in the five years prior. This latest amendment to the Fair Work Act will go a long way to addressing the lack of protection for these victims of sexual assault in the workplace.

Australian workers still have faith in this country, despite our scandal-prone politicians

It’s interesting to note that the aforementioned sexual assault protections were passed by Parliament at a time when it was embroiled in perhaps the most egregious sexual abuse scandals in its history. And it seems that the protections were passed not because of those scandals, but in spite of them.

Perhaps that’s why Australian workers still have faith that their country will ultimately deliver the workplace protections they need. The ideal of Australia as one of the world’s most progressive society’s is one that most of us still have faith in. Our confidence in the nation’s collective ability to address workplace wrongs remains firmly intact. And interestingly, this confidence seems to be negatively correlated with the lack of faith many Australians have in our politicians and political system.

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Need help with a general protections claim or unfair dismissal claim. Or just need advice or discuss the article content, call us today

Conclusion to We still trust Australia’s Fair work Protections

I hope the article was of some interest to you. Whilst we are all individuals, however we still need to have a sense of the collective good. We can all contribute in our own way, from paying taxes, being a volunteer, to ensuring peoples rights are maintained in minority groups and interest. Its up to you. We are A Whole New Approach P/L, leading workplace commentators, advisors and representatives. Any matters to do with the Fair work Australia regime, casual employee rights, workplace investigations, sick leave.

Call 1800 333 666, advice is free, prompt and confidential

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General protections awarded $650k for uni employee

General-protections-awarded-$650k
Employees across Australia are celebrating the increasing payouts at the Federal court

General protections awarded $650k for uni employee

The Federal Circuit Court has recently awarded a whopping $664,601.38 to a university employee due to breaches of the general protection provisions of the Fair Work Act 2009 (FW Act). For failing its obligations under the Macquarie University Staff Enterprise Agreement 2015 (EA). The hearing to determine the appropriate remedy comes one year after the Federal Circuit Court established the liability of the employer in the decision of Tran v Macquarie University (No.2) [2019] FCCA 2049 (Decision). General protections awarded $650k for uni employee is an important decision

Handling employee complaints and dismissals

In the context of rising employment claims due to the COVID-19 pandemic and scrapping the JobKeeper scheme. The decision is another reminder for employers of the importance of following procedure. To undertake due diligence when handling employee complaints or termination of employment.  The significance of this decision is demonstrated by more than $270K awarded for future economic loss taking into account the COVID-19 pandemic. The employee’s age, her overall health, time out of the workforce and wages to date.

Background to complaints

The Applicant, Ms Tran, was employed as a systems accountant by Macquarie University (Macquarie) from 2007 up until Macquarie made her position redundant in July 2019. In about 2010, Ms Tran lodged a grievance against her direct supervisor due to concerns over her unreasonably demanding workload. This matter was dealt with by Macquarie via mediation and an amicable outcome was reached.

In 2014 there was a change in upper management at Macquarie and it was during this period of transition that Ms Tran began to experience increased pressure from her direct supervisor. In respect to her workload and work hours. After failed attempts to resolve the issue with her supervisor. Ms Tran made formal complaints through various channels within Macquarie however she was unable to procure an outcome satisfactory to her. From 2014 until her termination,

Ms Tran made several more complaints that relating to alleged ill treatment she was experiencing by her direct supervisor. Including allegations of bullying. The evidence before the Federal Circuit Court indicated that Ms Tran’s complaints were poorly handled by Macquarie. Including one instance where Ms Tran was encouraged by upper management to resign if she did not like her direct supervisor.

getting-paid
Getting paid after a win in the courts for your general protections claim

Dissolved role by redundancy

In 2017, Macquarie announced its proposal to restructure the workplace which essentially dissolved Ms Tran’s role (and that of another employee). And created two new roles of a higher level within the restructure. With a potential redundancy looming over her, Ms Tran expressed her interest to be redeployed within Macquarie. In accordance with the terms of the EA, Macquarie was required to give priority consideration for staff members seeking redeployment including a priority interview.

Macquarie was also required to identify any position suited to Ms Tran’s skills and relevant experience. Or identify if retraining was possible. The Federal Circuit Court found that Macquarie had failed in its obligation to make a genuine attempt to assess Ms Tran’s skills in relation to the positions she applied for. Failed to disclose the existence of available positions to which she was entitled to a priority interview.

Targeted specifically

Ms Tran commenced a general protections claim in the Fair work Commission. This did not resolve through mediation. Proceedings were then commenced in the Federal Circuit Court claiming that the restructuring was targeted at her specifically. It was Macquarie’s intention being to remove her from her role due to the complaints she had made.

General Protections Provisions Under the FW Act

The general protections found in Part 3-1 of the Fair work Act prohibit employers from taking adverse action against an employee because the employee has a workplace right or has exercised a workplace right by making a complaint or enquiry. Further industrial activities and protects against discriminatory treatment on the basis of protected attributes and sham arrangements.

In respect of prohibited actions by an employer against an employee, ‘adverse action’ means dismissing the employee. Injuring them in their employment. Altering their position to their prejudice, or discriminating against them by treating them less than favorably compared to other employees.[1]

carrying-the-world
You can feel like the system is here to break you, don’t give up.

Workplace right

Under the FW Act, a person has a workplace right if they are entitled to the benefit of a workplace law or instrument. Has a role or responsibility under a workplace law or instrument. Is able to initiate or participate in a process or proceedings under a workplace law or instrument and is able to make a complaint or inquiry to seek compliance with a workplace law or instrument. Thus, an employee, like Ms Tran in this case, can make a complaint about bullying or unreasonable workloads. The employer is prohibited from taking any adverse action, such as making their position redundant, because of their complaint.

The use of the word ‘because’ in these provisions is the central question in a General Protections dispute. The largest hurdle for any employee claiming an employer has acted adversely towards them. Is drawing the link between the exercise of a workplace right and the adverse action. Unless the adverse action was taken ‘because of’ the prohibited reason. There will be no breach of the General Protections provisions. If it is alleged that a person is taking action solely for a non-prohibited reason. Such as serious misconduct or poor performance, then there will be no breach. If there are multiple reasons for the action, one of them being a prohibited reason. The prohibited reason must be a substantial and operative reason. Even if it is not the sole or dominant reason, for a breach to be established.

Excised that workplace right

In the case of Tran. The Federal Circuit Court considered the allegations made by Ms Tran in the context of the general protections provisions. Based on the evidence presented it was satisfied that Ms Tran had exercised a workplace right within the meaning of s 341(1)(c) of the FW Act. By making formal complaints about the unreasonable hours and workload, including her treatment at the hands of her direct supervisor.

The Federal Circuit Court also held that Macquarie’s proposed restructure that dissolved Ms Tran’s position, amounted to adverse action within the meaning of s 340 and s 342 of the FW Act. Accordingly the adverse action was taken for a prohibited reason, that being, the adverse action was taken in response to the complaints made by Ms Tran.

The Federal Circuit Court also considered contraventions of Macquarie’s Enterprise Agreement. Pursuant to s 50 of the FW Act, a person must not contravene a term of an enterprise agreement. In its Decision, the Federal Circuit Court held Macquarie’s failure to redeploy Ms Tran. Or make sincere and genuine attempts to do so, was not in accordance with the terms of the EA and thus contravened the EA. The Federal Circuit Court held this was a breach of s 50 of the FW Act.

Macquarie’s obligations in respect to restructuring, redeployment, and redundancy under the EA were described by the Court as extensive and beyond the norm. That being said, the Federal Circuit Court held that employers should ensure they understand and comply with any consultation obligations arising from Modern Awards or enterprise agreements applicable.

counting-the-money
General protections awarded $650k. Counting the win, why not?, she deserved it.

What was the employee awarded?

The Federal Circuit Court awarded compensation totalling $664,601.38 to Ms Tran. This compensation amount was made up of the following:

  • $45,000 in pecuniary penalties paid directly to Ms Tran for Macquarie’s multiples contraventions of the FW Act;
  • $271,163.19 in compensation due to the Court’s determination that reinstatement was not suitable in this instance;
  • $55,156.19 in superannuation payments, which includes the amount Ms Tran would have accumulated had the payment been invested;
  • $278,282 in compensation for future economic loss;
  • $15,000 in non-economic loss due to the distress and humiliation experienced by Ms Tran due to being unlawfully made redundant.

The substantial sum awarded to Ms Tran is a win for employees everywhere. However, the facts of this case were unique and there is no guarantee that all general protections claims will be awarded this much. In addition, the entire court case took years and thousands of dollars in legal fees. Which is an important consideration to take into account when lodging a claim in the Federal Circuit Court or the Federal Court.

general-protections-down-the-drain
Careful your general protections claim doesn’t get this appearance.

Consideration of the long term effects of COVID-19 pandemic

An important aspect of this decision is the Federal Circuit Court’s consideration of the long-term effects of the COVID-19 pandemic on our economy and job prospects. This was a factor that was importantly considered when the Federal Circuit Court awarded damages to Ms Tran for future economic loss. However, there were several factors considered by the Federal Circuit Court in the Decision and the mention of the pandemic was very brief. Nevertheless, these brief comments may have wider implications on future court actions. Specifically in regard to the dismissal of high wage earners during the pandemic who naturally may take longer to find a new role in the current climate.

Th Decision demonstrates the importance of implementing thorough and consistent work practices in respect to dealing with employee complaints. To ensure a fair process is implemented and followed each time a complaint is made. The Decision also highlights the importance of complying with the terms of any applicable enterprise agreements or Modern Awards.

General protections claim awarded $650k for uni employee

I hope this article “General protections claim awarded $650k for uni employee” was of interest for you. The range in which compensation is awarded, is extreme. if we can be of assistance your welcome to call us. Anything to do with the Fair work Australia regime, including dismissals, redundancies, abandonment of employment, workplace harassment

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General protections claim awarded $1 million click here

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[1] Fair Work Act 2009 (Cth) s.342(1).

General Protections Claim is awarded $million

general protections claim awarded million $
Not everybody’s a winner in the court system. However it is good news when an employees get a decent win and settlement

General Protections Claim is awarded $million

Good luck to the CFMEU and their member in General Protections Claim is awarded $million. The CFMEU has a checked history and seems to keep getting fined for their behaviour. In this case they have certainly done some good. so what’s it all about? Why did this claim get a million dollars when most other claims don’t. Read on and see what happened.

Summary

In the recent General Protections claim CFMEU v Hail Creek Coal Pty Ltd.[1] The Federal Court of Australia has awarded an employee damages of $1,272,109 for past and future loss of wages. This substantial pay out under the adverse action provisions of the Fair Work Act. This was was made despite the District Court having previously awarded substantial common law damages for the employee’s work-related injury. General Protections Claim awarded million $

History

Mr Haylett, an employee of the Hail Creek Coal Pty Ltd (HCC), sustained a work related back injury in 2009. He returned to work in a modified role and worked in that role for about 3 years.

On 15 November 2013, the District Court awarded Mr Haylett approximately $637,000 in common law damages for his workplace injury. On 18 November 2013, Mr Haylett undertook a prearranged medical assessment under the Coal Mining Safety and Health Act 1999.

He was assessed as unfit to undertake the duties of his unmodified role. Mr Priestly, HCC’s mine manager, decided to suspend Mr Haylett from employment. This was when he received the results of the medical assessment. Despite Mr Haylett’s successful challenge of the validity of the medical assessment, Mr Haylett was not reinstated to his role.

General protections claim pursued by the union

The CFMEU, on behalf of Mr Haylett, brought a number of claims against HCC. Including that HCC had contravened section 340 of the Fair Work Act (FW Act). This was by failing to pay Mr Haylett wages because he had exercised a number of workplace rights. This included the exercise of Mr Haylett’s workplace right to commence proceedings in the District Court for common law damages in relation to his workplace injury.

In these Federal Court proceedings, Mr Haylett claimed that a reason for his stand down included because he pursued the employer for damages arising from his back injury. (and this was a “workplace right” has was entitled to pursue). Because of the “reverse onus of proof” in adverse action proceedings, the employer had to prove that the reason or reasons Mr Haylett was stood down did not include because he pursued compensation for his injury. The employer maintained that the “primary and only” reason the mine manager stood Mr Haylett down was the need to comply with the CMSH Regulations.

General Protections Claim is awarded $million
General Protections Claim is awarded $million. don’t get too caught up in the million dollar result. You claim is worth, what’s it worth. Of course some applicants do better than others. Justice is not equal for all. You do not want to be the one that is burnt through this general protections process.

Discharged the onus of proof

The Court was not satisfied that the employer had discharged the onus of proof. In order to show that the workplace rights Mr Haylett exercised was not a reason for its decision to stand him down on 19 November 2013.

The mine manager gave evidence that the “primary and only reason” for his decision to stand Mr Haylett down was the need for the employer to comply with the CMSH Regulations. However, Justice Reeves found the manager to be generally unsatisfactory as a witness.

His Honor specifically held:

  • the mine manager had been advised that as a result of Mr Haylett’s compensation for the back injury, the employer’s insurance premiums would rise;
  • the decision to stand Mr Haylett down was made in haste. The manager received Dr Parker’s assessment after Mr Haylett was placed on sick leave;
  • the purpose of the CMSH Act and Regulations is to protect the safety and health of employees working in the coal mining industry. It is not directed to the operational requirements of coal mining employers;
  • the manager said in evidence that he did not know Mr Haylett and he did not know the type of work he was performing at the mine. Notwithstanding this, he did not ask anyone about Mr Haylett’s work activities before making his decision to stand him down. Purportedly for safety reasons;
  • the manager did not speak to anyone about the content of the email from Dr Parker. Or seek any advice from the Human Resources Department about any requirements under the CMSH Regulations; and
  • the manager could not point out any provision in the CMSH Regulations that required him to act in the manner he did.

Stand down was unlawful adverse action

Due to the fact that the employer could not prove that Mr Haylett’s compensation claim was excluded from the reasons for standing Mr Haylett down. The Court found that Mr Haylett’s stand down was unlawful adverse action. There is no “cap” on compensation that can be awarded for unlawful adverse action and so Mr Haylett was awarded:

  • compensation for past and future loss of wages, plus interest, which amounted to $1,296,735; and
  • a penalty of $50,000,paid to his union, the CFMEU.

Key Takeaways

Uninformed and ill-advised decision making

This serves as a reminder to employers that evidence of a decision maker’s reasons will be critical for the employer to “prove their innocence”. Usually managers will have to give evidence. Uninformed and ill-advised decision making may lead to contraventions. Care must be taken when making decisions to an employee’s detriment. Even where the decision is well intended, to ensure the decision does not breach any enterprise agreement, modern award or the FW Act.

Having a clear decision making process and documenting appropriate reasons can be key to discharging the reverse onus. With the impending replication of the adverse action jurisdiction to the government sector in Queensland, (now passed).It has never been more important for all workplace decision makers to be able to justify adverse treatment of employees. In making the award, Reeves J considered the interaction between the common law damages award and the award for breach of the FW Act. Reeves J held that those awards had different purposes as:

  • the District Court award was an award of damages for loss of earning capacity assessed by reference to the effect his physical injury would have on his future earning capacity; and
  • the current award was to compensate Mr Haylett for loss of wages and future income caused by contraventions of the FW Act.
Get the help you need, it can be an exhausting process
Get the help you need, it can be an exhausting process.

The way in which compensation in such cases is to be calculated

The case is interesting not just for its analysis of the general protections. But also for the judge’s summary of the way in which compensation in such cases is to be calculated. The calculation process can be quite complicated. In Maritime Union of Australia v Fair Work Ombudsman,[2] the Full Court described the exercise that has to be undertaken in assessing an award of compensation under s 545(2), as follows (at [28]):

The task of the primary judge, having found the relevant contraventions, was to assess the compensation, if any, that was causally related to those contraventions. That involved not an examination of what did happen, but an assessment of what would or might have occurred, but which could no longer occur (because of the contraventions). Subject to any statutory requirement to the contrary, questions of the future or hypothetical effects of a wrong in determining compensation or damages are not to be decided on the balance of probability that they would or would not have happened. Rather, the assessment is by way of the degree of probability of the effects – the probabilities and the possibilities.

Proved on the balance of probability

The above proposition must be qualified by the recognition that, where the fact of injury or loss is part of the cause of action or wrong, it must be proved on the balance of probability. Compensation is generally awarded for loss or damage actually caused or incurred, not potential or likely damage: Insofar as future or hypothetical events are concerned, the High Court described how loss or damage was to be assessed, in the following terms: … Hence the applicant must prove on the balance of probabilities that he or she has sustained some loss or damage.

Loss and damage was sustained

However, in a case such as the present, the applicant shows some loss or damage was sustained by demonstrating that the contravening conduct caused the loss of a commercial opportunity which had some value (not being a negligible value), the value being ascertained by reference to the degree of probabilities or possibilities. It is no answer to that way of viewing an applicant’s case to say that the commercial opportunity was valueless on the balance of probabilities because to say that is to value the commercial opportunity by reference to a standard of proof which is inapplicable.

By its very nature, the calculation of future loss can only be a rough estimate. It cannot be undertaken with mathematical precision. The object is to arrive at an estimate which is “most likely to provide fair and reasonable compensation”.

Maritime Union of Australia v Fair Work Ombudsman,
general protections
Make sure the scales of justice work in your favor. General Protections Claim is awarded $million. You want the best possible result for your general protections application. There is a lot to consider.

General Protections Claim is awarded $million

General Protections Claim awarded million $ was a brief article. Pursuing a general protections claim is serious business. Its important you get early advice to work out a strategy to succeed. (medical evidence, witness statement, expert opinions). Its not like when you go to the accountants and hand them a folder or case of receipts and you say let me if I owe or I pay the tax office.

The in tribunal and courts systems you have to prosecute your own claim. The fair work Commission is there to assist you as part of the process. Not advice you, or run your case. You only get out of these cases, whet you put into them. Keep good evidence, try and bring clarity to the situation. Focus on why and the grounds you have lodged your general protections claim.

A lot of applicants get it confused with a unfair dismissal claim. They keep going back to the unfairness of it all. this is not what a general protection claim is about. There’s that old saying you don’t go to a gun fight with a knife. Of course it was unfair the way they treated you, the way they sacked you, that s not the test. Did the employer breach the general protections provisions? (excising workplace rights, discrimination related dismissal) is the real test.

Questions, need advice?

Have questions, need advice, give us a call. Lets work out what best for you. Many general protections claims are based on discriminatory acts by the employer. So there is the possibility to lodge a claim in the various human rights, equal opportunity or anti discrimination boards around the country. Sometimes this is a cheaper and more relevant process. It depends on your claim and what you seek out of the claim, your ability to fund the claim (we do no win, no fee work). Matters around, general protections, adverse actions, workers rights, employments rights, unfair dismissal, we are here for you.

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[1] [2016] FCA 199; [2016] FCA 1032.

[2] [2015] FCAFC 120.

General Protections Application

General Protections Application
General protections application A diverse group of employees, everybody has rights, its your right to complain, to stand up for yourself, do not suffer in silence

What are “General Protections”?

There is plenty of material written on general protections, and adverse action we have various blogs out on this. However sometimes more succinct answers to questions may be less confusing, hence the General Protections Application article. The General Protections provisions are set out in Part 3-1 of the Fair Work Act 2009 (Cth) (the FW ACT). Under the FW Act, employers are prohibited from taking adverse action against an employee because of a workplace right or industrial activities. It also protects against discriminatory treatment on the basis of protected attributes and sham arrangements.

Who is protected under the General Protections provisions?

The General Protections Provisions protect certain persons. Including employees and prospective employees, employers and prospective employers, independent contractors and prospective independent contractors. A person who has entered into or who has proposed to enter into a contract for services with an independent contractor and an industrial association. This includes an officer or member of an industrial association.

This means certain persons, such as an employer, are prohibited from taking adverse action against other certain persons. Such as an employee, because the other person or employee has, or exercises a workplace right or engages in industrial activity.

What is adverse action under the General Protections provisions?

Adverse actions can include dismissal of an employee but encompasses a range of other actions such as prejudicing the employee. Injuring the employee in his or her employment or discriminating against them. Altering the position of an employee to the employee’s prejudice or injuring the employee in his or her employment. This is a broad additional category of adverse action but includes situations in which an employee is in a worse position after the employer’s acts than before them.

As a result, a deterioration has been caused by the employer’s intentional acts and the employee has been deprived of one or more immediate practical incidents of employment. Examples of this include an employer issuing an employee with a written warning. Altering the roster and reducing their hours. Reducing their status and level of responsibility or suspending the employee.

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What is a workplace right under the General Protections provisions?

Under the FW Act, a person has a workplace right if they are entitled to the benefit of a workplace law or instrument. Has a role or responsibility under a workplace law or instrument. Is able to initiate or participate in a process or proceedings under a workplace law or instrument and is able to make a complaint or inquiry to seek compliance with a workplace law or instrument.

For example, an employee is entitled to complain about the fact that they were not given annual or personal leave. Or complain as to why there was a deduction in their pay. An employer is therefore prohibited from taking any adverse action. Such as dismissing an employee, because of this workplace right or because the employee has or has not exercised a workplace right.

The use of the word ‘because’ in these provisions is the central question in a General Protections dispute. The largest hurdle for any employee claiming an employer has acted adversely towards them. Is drawing the link between the exercise of a workplace right and the adverse action. This is a question of fact, where the Fair Work Commission must decide what the facts of each case are, based on the evidence presented. In turn the Commission must determine which of the circumstances were more likely to have occurred. This is on the civil test of “on the balance of probabilities” and in light of all the facts established in the proceedings.

Adverse action was taken

Unless the adverse action was taken ‘because of’ the prohibited reason. There will be no breach of the General Protections provisions. If it is alleged that a person is taking action solely for a non-prohibited reason, such as serious misconduct or poor performance, then there will be no breach. If there are multiple reasons for the action, one of them being a prohibited reason, the prohibited reason must be a substantial and operative reason. Even if it is not the sole or dominant reason, for a breach to be established. In addition, it is presumed that the action is being taken for the non-prohibited reason or with that intent, unless the person or employee proves otherwise.

always treat employees properly to avoid claims
Everybody should strive for a safe workplace, free of adverse action, and not wanting to lodge a general protections claim

If I did not make a complaint or inquiry, am I still protected under the General Protections provisions?

The General Protections provisions provide persons with protection against discriminatory treatment for a range of protected attributes. Discrimination in an employer-employee relationship is when an employer deliberately treats an employee, or a group of employees. Less favorably than other employees because of their race, colour, sex, sexual orientation, age, physical or mental disability. Marital status, family or Carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin. The discrimination in this context is not limited to a direct and conscious distinction based on an employees’ protected attribute. But could also encompass indirect discrimination.

Indirect discrimination is conduct that appears neutral but impacts disproportionately on a group with a particular protected attribute. Thus could amount to, or result in, less favourable treatment. For instance, an employer that imposes a full-time work policy after an employee returns from maternity leave on a part-time basis, is arguably indirect discrimination.

The discrimination occurs as the employee is required to work full-time. If it is now necessary condition to maintain their position with the employer. This requirement is a condition that would disadvantage. Or is likely to disadvantage women as it is not reasonable in the particular circumstances.

Application can be made for sexual harassment
Sexual harassment can be a general protection application

Sexual harassment, as defined under state specific anti-discrimination laws or falling under sex discrimination. Is unwanted or unwelcome sexual advances. Requests for sexual favors or conduct of a sexual nature in circumstances which a reasonable person, having regard to all the circumstances, would have anticipated this behaviour to cause offense, humiliation or intimidation.

Temporary absence

The General Protections provisions provide persons with protection against dismissal only for temporary absence in their employment due to illness or injury. An employer must not dismiss an employee because the employee is temporarily absent from work due to illness or injury of any kind. However, the employee will not be protected if the employee’s absence extends for more than 3 months. The total absences of the employee, within a 12-month period, have been more than 3 months collectively. The employee is not on paid personal or Carer’s leave for the duration of the absence. 

Can I lodge Sham Arrangement claim?

The General Protections provisions also provide protection against sham arrangements. An employer cannot misrepresent employment as an independent contract arrangement when the position actually involves entering into an employment contract. An express term that an employee is an independent contractor cannot take effect according to its term if the totality of the relationship contradicts this express term. Thus, an employer cannot argue that a person is an independent contractor if various factors, or indicia, point to an employer-employee relationship.

Coercion and undue influence or pressure, what do i do?

Another protection afforded under the General Protections provisions is coercion and undue influence or pressure. A person must not organize, take or threaten any action against another person. Or to force that other person to not exercise a workplace right. Thus, an employer must not threaten an employee with demotion unless the employee stops a sexual harassment claim against their manager.

In addition, an employer must not exert undue influence or undue pressure on an employee. Specifically in relation to a decision that an employee is required to make relating to the terms and conditions of employment. For instance, an employer must not pressure an employee to agree, or not agree, to a deduction from amounts payable to the employee in relation to the performance of work.

Last of all, the General Protections provisions protects freedom of association and involvement in lawful industrial activities. Thus, an employer must not take adverse action against an employee for their membership status with an industrial association and for participating, or not, in industrial activities.

What remedies are available under a General Protections application (provisions) ?

If a person, such as an employee, can successfully establish that another person, such as an employer, has breached the General Protections provision, the person may be entitled to remedies in the Fair Work Commission. If the claim proceeds the Federal Court or the Federal Circuit Court. Remedies available in the Fair Work Commission include reinstatement, orders relating to continuity or lost remuneration and compensation. In regards to compensation, this can include non-economic loss such as hurt, humiliation and distress where there is a casual connection between the contravention and the loss. Compensation in this form is referred to as general damages.

get compensation with a General Protections Application
There is no capping on compensation for general protections application

We have a page on general protections compensation that will be a guideline for you, click here

How do I lodge a General Protections application (claim) ?

If an employer has dismissed an employee and they believe this action was done because they have exercised a workplace right. The employee has 21 calendar days after the dismissal took effect, to lodge an application in the Fair Work Commission. Once an application is lodged, the Fair Work Commission will set the matter down for a conciliation conference. This is a private proceeding conducted by an independent conciliator.

This conference is an informal method of resolving a General Protections dispute. In which an independent conciliator will assist the parties in exploring options for resolution and help them to reach an agreement. Without the need for a formal hearing or court proceedings. If either party objects to a conference, an application for an interim injunction can be made and the matter can proceed directly to court.

Conclusion to general protections Application

I hope you enjoyed the article “general protections application”. We are A Whole New Approach, leaders in all matters with the Fair work Australia, and Fair work Commission. This includes adverse action, sacked from work, unfair dismissals. We are fierce advocates in commentary, representation and research for employment rights.

Anything to do with the workplace we are here for you. AWNA are not lawyers, nor do we charge by the hour and the email. We have no win, no fee options and fixed fees. So you know exactly where your at as far as fees go. We work hard for you, we are proud of our staff and the outcomes we get for clients.

Call, 1800 333 666, advice is free, prompt and confidential.

Another article on general protections that is informative, click here

Difference between unfair dismissals and general protections, click here

General protection rights to “whinge and moan”

General protection rights to “whinge and moan”
Your right to complain is legislated under the Fair work Act. Some employees want to complain every day or every time something doesn’t go their way. Read on understand the difference.

General protection rights to “whinge and moan” in the workplace,

Background

General protection rights to “whinge and moan”, is great topic and needs to be explored, what is a general protection right?, what is a complaint? Under the General protections provisions of the Fair work Act, and the subsequent decisions of the Fair work Commission and courts, its generally accepted that you cannot be dismissed for excising a workplace right. Ie the right to complain. But when do general protection complaints cross over to an employee whining and moaning about their workplace?.

We get calls constantly from employees who complain every week, every time, or little detail or happening at work they are not happy with. It goes without saying employers are not happy with what they see as a distraction. We see this particularly in probations periods.

Of course its your right to complain at any time. However sometimes be smart about it, wait until your probation period is up, or the qualifying period is over. It gives you the rights to lodge an unfair dismissal claim, perhaps a more substantial general protections claim. Employers know this and will approach the issue in a more even handed way. That doesn’t mean you have to put up with a toxic workplace, or an bullying workplace or breaches of OH&S. Its your decision, I’m just pointing this out.

What is my general protection claim worth, click here

Lets examine what the Fair work Commission and the Federal court have decided

general protections decision

Manager has failed to win anti-bullying orders

In Fair work Commission case of Donovan Christopher (J.n.r) Scott v Vita People Pty Ltd & Josie Williams,[1] a manager has failed to win anti-bullying orders against a female supervisor after the FWC found that his “violent objection” to being placed on a performance improvement plan at times became “blatantly misogynistic”.

On 3 June 2021, Mr Donovan Christopher Jnr Scott (Mr Scott) filed an application pursuant to s.789C of the Fair Work Act 2009 (the Act). To the Fair Work Commission (the Commission) for an order to stop bullying. Mr Scott’s employer is Vita People Pty Ltd (Vita People). The application sought an order to stop bullying against Ms Josie Williams, Business Manager at the North Queensland Telstra Business Technology Centre. And Mr Matt Parks, Regional Manager Brisbane.

Mr Scott was an account manager for Telstra service provider Vita People and began reporting to his former colleague, Ms Josie Williams. This was last year after her promotion to business manager at the Telco’s business technology centre in Townsville. Following concerns about missing targets, late starts, customer service. also listening to LinkedIn podcasts during work hours, the employer imposed a PIP on Mr Scott in April 2021. Mr Scott responded to the development by telling Ms Williams, “Dude you’re wrong, this is bullshit“.

Reasonable and lawful direction

Commissioner Hunt of the Fair Work Commission described Mr Scott’s consternation regarding the reasonable and lawful direction to complete a certain number of GES unassigned tasks each month is extraordinarily immature. Ms Williams didn’t create or determine the numbers that all Account Managers needed to achieve; Vita People determined it as a business, based on its client’s requirements. Mr Scott’s refusal to comply with this reasonable and lawful direction was described as disruptive. Also rude behaviour towards Ms Williams.

General protection rights to “whinge and moan”
She’s in complaining again about a co worker, is life all about her. Or does she have a point?, a right?

Disrespectful behaviour was blatantly misogynistic

Commissioner Hunt also acknowledged that Mr Scott’s disrespectful behaviour towards Ms Williams was blatantly misogynistic. As he would continually verbally refer to her as dude, bro or man. Ms Williams repeatedly informed him of her displeasure at being referred to in masculine terms. However it appeared Mr Scott had deliberately continued to use these references towards Ms Williams. Commissioner Hunt reasonably concluded that Mr Scott would have been unlikely to have addressed his manager in such a condescending and rude manner if his manager was male.

Ultimately, Commissioner Hunt held that Ms Williams had been “correct” in placing the manager on a PIP. Which she did with the “full authority” of Vita People management. Commissioner Hunt acknowledged that Ms Williams did not need Mr Scott’s consent nor his agreement as to what was within the PIP. Additionally her conduct was reasonable management action carried out in a reasonable manner. 

Whilst this decision relates to an application for an order to stop bullying. Commissioner Hunt does make reference to Mr Scott’s “complaints” or lack thereof. In her decision, Commissioner Hunt made an interesting assertion regarding the effect of Mr Scott’s disputation of having to perform the task.

What is a complaint?

Given this task was performed satisfactorily by his peers, Commissioner Hunt found that Mr Scott whinged and moaned about having to perform the task. When he had no right to do so. This comment raises an interesting point in respect of what is considered a complaint. When a person has a right to complaint and when will a person’s “complaint” be disregarded as no more than a mere unjustifiable whinge.

No right to “whinge and moan”

A workplace right is defined s.341(1) of the Fair Work Act 2009 (Cth)(the Act). It includes a person’s workplace right to initiate or participate in a process or proceedings under a workplace law or workplace instrument, or to make a complaint or inquiry. The focus of this piece is on a person’s workplace right to make a complaint or inquiry in relation to his or her employment.

Complains or enquiry

In Shea v TRUenergy Services Pty Ltd (No 6). The Federal Court discussed the parameters of “complaint or inquiry.” In summary, they found that:

  • A complaint is a communication which, whether expressly or implicitly, as a matter of substance, irrespective of the words used, conveys a grievance, a finding of fault or accusation;
  • The grievance, finding of fault or accusation must be genuinely held or considered valid by the complainant;
  • The grievance, finding of fault or accusation need not be substantiated, approved or ultimately established. But the exercise of the workplace right constituted by the making of the complaint must be in good faith and for a proper purpose;
  • The proper purpose of making a complaint is giving notice of the grievance, accusation or finding of fault. So that it may be, at least, received and, where appropriate, investigated or redressed;
  • A complaint may be made not only to an external authority or party within the power to enforce or require compliance. Or redress, but may be made to persons including an employer, or to an investigator appointed by the employer;
  • A complaint that an employee is able to make in relation to his or her employment is not at large. But must be founded on a source of entitlement, whether instrumental or otherwise; and
  • A complaint is limited to a grievance. Finding of fault or accusation that satisfies the criteria in s341(1)(c)(ii). And does not extend to other grievances merely because they are communicated contemporaneously or in association with the complaint.

A person has a workplace right

This broad interpretation of the Act was also adopted in Henry v Leighton Admin Services Pty Ltd. where the Federal Circuit Court stated at [77]: “A person has a workplace right within the meaning of s341(1)(c)(ii) if the person has the capacity or capability to make a complaint or inquiry about the person’s employment rights and obligations or about matters which may prejudice the person in his or her employment.

A person will exercise such workplace right if the person makes a complaint or inquiry about his or her employment rights and obligations. Or if the person makes a complaint or inquiry about a subject that may prejudice the person in his or her employment”.

In Evans v Trilab Pty Ltd. The Court stated that a complaint or inquiry need not arise from a statutory, regulatory or contractual provision before it can be a complaint or inquiry for the purposes of the FWA; and only have an indirect nexus with a person’s terms or conditions.

dismissed for excising a workplace right
You have rights, how you excising them is the key, don’t get upset, get advice, know your rights, find out what to do next

Reported the wrong-doing of others

In general protections claim of Walsh v Greater Metropolitan Cemeteries Trust (No 2). Justice Bromberg of the Federal Court expanded the term to include instances where the subject matter of the complaint or inquiry raises an issue with potential implications for the complainant’s employment – in this case an employee reported the wrong-doing of others.

In Rowland v Alfred Health,[6] the Court held that a complaint or inquiry must be in relation to the employee’s employment. Prima facie this appears to be a constriction of the term; however Rowland has not since been cited with approval.

Whether a complaint or inquiry will be accepted to be in accordance with the general protections provisions of the Act. Will depend on the facts, circumstances and context of each matter. Given the rather narrow scope of a workplace “complaint or inquiry” and as evident in Donovan Christopher (J.n.r) Scott v Vita People Pty Ltd & Josie Williams. An employee does not have the right to simply whinge and moan in the workplace.

These tasks need to be performed by somebody

As held by Commissioner Hunt, no employee will ever like every single task they are required to perform. There are many tasks that employees perform which they consider to be irrelevant, unnecessary, unpleasant, of no utility or boring. Reasonable employers will try and limit the amount of unpleasant tasks an employee is required to perform. The reality is in life, these tasks need to be performed by somebody. As long as a task falls within the realm of reasonableness and is considered reasonable management action. An employer can direct their employee to complete such a task and the employee cannot object.

Conclusion to “General protection rights to “whinge and moan””

Thank you for reading “General protection rights to “whinge and moan””. The answers are not always easy, we are here to help you. We are A Whole New Approach, long established advocates for employees. We are always researching general protections and unfair dismissal cases.

To keep you up to date what are best practices, what the tribunal and courts are deciding. There nothing more political than workplace relations, its effects all working Australian’s, its changing daily.

Another article on general protections that may be informative, click here

General protections application, click here

Excising your workplace rights, click here

We represent employees in all Fair work Australia and Fair work Commission matters. We work in all states, including Victoria, NSW, QLD, TAS, SA, WA .

Give us a call, advice is free, prompt, confidential, 1800 333 666


Unlawful verses Unfair dismissal what’s the difference?

general protections and adverse action
Unlawful verses Unfair dismissal what’s the difference?. Know your rights now, please read on. Its could be important for your future

Unlawful verses Unfair dismissal what’s the difference?

Fair work Australia is a broad term when it comes to sorting out Unlawful verses Unfair dismissal what’s the difference? Is a topic we get calls on every day. When an employee is dismissed and they want to contest or challenge their dismissal. There are various applications that can be lodged to several industrial relation bodies, depending on the circumstances. In the Fair work Commission, there are two applications that can be lodged in relation to being terminated. An Unfair Dismissal Application (F2 Application) or a General Protections Application Involving Dismissal (F8 Application). This then begs the question; which application should I lodge? This particularly applicable to casual employees.

Lets work our way through this

Unlawful dismissal is the broad umbrella term used to describe all dismissals or terminations. (it doesn’t matter whether casual or permanent or length of service) that do not comply with the law. This includes unfair dismissal or unfair termination, allegedly contravening the Fair Work Act 2009 (Cth). An unfair dismissal, by definition, is where a person is dismissed and that dismissal is harsh, unjust and unreasonable. Thus, all unfair dismissals are unlawful dismissals but not all unlawful dismissals are unfair dismissals. This is due to the fact that unfair dismissal claims have jurisdictional criteria that an employee must meet or satisfy. Before they are eligible for a remedy under the Fair Work Act 2009 (Cth).

Firstly, an employee must have been dismissed. The term dismissed is defined in the Fair Work Act 2009 (Cth) as a situation where a person’s employment has been terminated at the employer’s initiative. Or a person was forced to resign because of the conduct or course of conduct engaged in by the employer. Secondly, the employee must be an employee, on a regular and systematic basis (for casuals). They must not be a contractor and must not have been employed for a specified period, task, seasonal contract or traineeship arrangement.

Thirdly, the employee must have completed the minimum employment period with the employer. This being six months of continuous service for a large business. One year of continuous service if the employer is a “small business”. Under the Fair Work Act 2009 (Cth) a small business is a business that employs fewer than 15 employees. Includes casual employees that are employed on a regular and systematic basis.

High income threshold issues

In addition, the employee must earn less than the high-income threshold (which is currently $158,500 gross per year) or be covered under a modern award or enterprise agreement.

21 days to lodge a claim

Lastly, the employee must lodge their claim within 21 days of their dismissal taking effect. This time limit is strictly enforced, and claims lodged outside the 21 days, will only be accepted in exceptional circumstances. (extraordinary difficult to over come this timeline, claims have been rejected for being one minute late)

unlawful verses unfair dismissal. female bullied out of her job
Confusion abounds on what do do, please read on

Unlawful verses Unfair dismissal what’s the difference?

Unlike unfair dismissals or unfair terminations, unlawful dismissal claims do not have these jurisdictional pre-requisites. They do however, have a very narrow legal argument which which does not consider general “unfairness” of the dismissal. Thus, lodging an unlawful termination claim is not a consolation prize for when you are ineligible to lodge an unfair dismissal claim. This means that just because you may be unable to lodge an unfair dismissal/termination claim as you do not qualify, you cannot automatically lodge an unlawful termination claim. These two claims have very different arguments and cover different aspects of the Fair Work Act 2009 (Cth).

Aforementioned, unlawful dismissal claims in the Fair Work Commission, are lodged in the form of a General Protections Claim Involving Dismissal (F8 Application). Alleging that the employer has contravened the General Protections provisions, as set out in Part 3-1 of the Fair Work Act 2009 (Cth). The General Protections provisions prohibit employers from taking adverse action against an employee because of a workplace right or industrial activities.

Discriminatory treatment

General protections provisions also protects against discriminatory treatment on the basis of protected attributes or sham arrangements. These claims do not consider any principles of fairness regarding the termination itself, as in an unfair dismissal claim. The only consideration for the Fair Work Commission is whether or not an employee has a workplace right or has exercised a workplace right. Whether an employer has acted adversely towards the employee because of this.

An example of a scenario in which an employee will have grounds to lodge a claim could be if they have been dismissed after they made a complaint or enquiry about their pay to their employer. Although the employer may not disclose this as the reason for termination, the Fair Work Commission will look at the probability that the employee was dismissed because of their complaint. Therefore constituting an unlawful dismissal.

Unlawful dismissal claims are difficult to prove

Unlawful dismissal claims are more difficult to make out than an unfair dismissal/termination claim. This is due to the narrow scope of the provisions and the requirement for a causative link between the workplace right and the dismissal. Nevertheless, it is irrelevant whether there was a valid reason for termination. Or whether they received any warnings or whether the procedure was fair. These considerations are only relevant for the unfair dismissal regime.

unlawful verses unfair dismissal
What is justice when you have been dismissed?

For an unfair dismissal claim the Fair Work Commission is required to take a number of considerations into account, such as:

  • whether there was a valid reason for the termination which relates to the employees’ capacity or conduct.
  • That the employee was notified of this reason.
  • whether the employee was given any opportunity to respond to that reason.
  • was there was any unreasonable refusal by the employer to allow the presence of a support person for any discussion relating to the termination.
  • whether the employee was warned about unsatisfactory performance prior to the termination if this was the reason for the termination.
  • the degree to which the size of the employer’s enterprise would likely impact on the procedures followed in making the termination.
  • the degree to which the absence of dedicated human resource manager specialists or expertise in the employer’s enterprise would be likely to impact on the procedures followed in the termination; and
  • any other matters the Commission considers relevant.

Jurisdictional requirements

If an employee is eligible to lodge either claim, given they satisfy the jurisdictional requirements for an unfair dismissal claim (example the status of a casual employee) or they can link their dismissal to their workplace right, the employee can only choose one claim to pursue in the Fair Work Commission. A person cannot lodge an unfair dismissal and an unlawful dismissal claim for the same set of facts, i.e. for the same termination. The employee must elect which claim they wish to pursue and only lodge that one.

In deciding which application to lodge, the employee must decide what it is that they are seeking. For both applications, an employee can ask for a variety of remedies but most commonly, an employee will seek either reinstatement or compensation remedies. (get the termination turned into a resignation, and get a statement of service reflecting this is quite common. (This will only occur as part of a negotiated settlement).

For unfair dismissal claims, reinstatement is the primary remedy sought but if this is not viable, the Fair Work Commission may order compensation in the form of a weeks of pay for economic loss. Compensation in this form is designed to compensate unfairly terminated employees in lieu of reinstatement for losses reasonably attributable to the unfair dismissal. As a result, compensation cannot be awarded for shock, distress or humiliation. There is also a compensation cap of 26 weeks pay for these unfair termination claims. (length of service is a major consideration in regards this).

Remedies and agreements

However, prior to a formal hearing in which the Fair work Commission would determine the outcome and the subsequent remedies, an employee may strike a without prejudice and confidential deal with their ex-employer. In which the employee may seek compensation, to have their termination rescinded and for the employer to allow them to resign and for the employer to provide them with a Statement of Service.

For an unlawful dismissal claim, the remedies an employee can seek are virtually the same but in addition to seeking compensation for economic loss due to the employee’s dismissal, they can also seek damages for shock, distress or humiliation. However, if the matter does not settle in the conciliation conference, the Fair work Commission does not have the power to decide the outcome, as they do have for unfair termination claims.

If the parties are unsuccessful in reaching an agreement for a General Protections Claim and the Fair Work Commission is satisfied that all reasonable attempts to resolve the dispute have been, or are likely to be, unsuccessful, then the Commission must issue a certificate to that effect. A person has only 14 days after the day the certificate is issued by the Fair Work Commission, to make a general protections court application in the Federal Court or Federal Circuit court.

unlawful verses unfair dismissal

Compensation, How much?

Unlawful verses unfair dismissal, sometimes you can lodge either.

There is also no cap on the amount of compensation that can be awarded by a Court. (what’s your case worth). This in refence to a unlawful dismissal claim (general protections claim). The court does look to the same factors as in an unfair dismissal claim, when considering an unlawful dismissal claim. Length of service. The remuneration the employee would have received, or would have been likely to receive. If they had not been dismissed, etc.

However, the Court will also look at the non-economic detriment of the employee, when deciding to award damages. This includes medical evidence or doctors’ reports which demonstrate pain and suffering. An employee must therefore decide whether they can afford to pursue the matter through the courts. Because if they cannot, the unfair dismissal claims are a more cost-friendly form of litigation. Commencing any sort of litigation or court action can be an expensive ordeal.

Action under common law

An employee may choose to pursue an action under the common law in the courts but due to the cost of Federal Court actions, the employee may be facing tens of thousands of dollars in legal fees. Luckily, the unfair dismissal regime in the Fair work Commission, is a relatively cost-friendly process. (and a lot quicker). Whilst is is a relatively cost-friendly process, this is why there is a compensation cap and so the employee must decide how much money they’re really seeking. If they can afford to fight for the bigger money with expensive legal court costs. Talk to us at A Whole New Approach P/L, are not lawyers. However on referring the federal court proceedings we have a excellent referral process, give us a call.

Unlawful verses Unfair dismissal what’s the difference?

I hope you enjoyed the article, “Unlawful verses Unfair dismissal what’s the difference?”. The topic has been explained in other blogs. However I’m striving to try and succinctly bring increased clarity to difficult subjects. Example of this is what casual employees can or cannot bring to the FWC.

Got a question or concern give us a call. We are experts on anything to do with the workplace. Fair work Australia and Fair work commission matters, is bread and butter as they say. Scan through the blogs, nobody publishes the workplace commentary the way we do. We are here for you, we will not let you down. We work in all states including, Victoria, NSW, QLD, SA, WA, NT, Tas

Find out and also compare your case to others.

Another article on the unfair v unlawful choice which could be helpful, click here

What is a dismissal, click here

Reinstatement for your unfair dismissal claim, click here

Free, confidential call 1800 333 666

We own https://unlawfultermination.com.au/ awdr.com.au sexualharrassmentaustralia.com.au this totals over 200 pages of valuable information for you

Difference Between Dismissal and General Protections

Difference-Between-Dismissal-and- General-Protections
Confusion abounds, what should i do?, which form do i put in? Get advice

Difference Between Dismissal and General Protections

When an employee is dismissed and looking to lodge a claim against their employer, they will notice that the two applications that they can make to the Fair Work Commission. These two applications are unfair dismissal (F2 Application) or a general protections application involving dismissal (F8 Application). So, you may be asking yourself, what is the difference between these two claims? Which claim should I lodge?

Understanding the Difference is important.

Although these claims both involve an employee being dismissed, they are not the same application. They have very different criteria. Just because you may be eligible to lodge one of these two claims, does not mean you automatically qualify for the claim also. If you are unsure whether you have a claim or which application you can pursue, please give us a call. It’s important to know what your pursuing as a remedy as part of the process

What’s your general protections claim worth?, click here

What’s your unfair dismissal claim worth, click here

Difference, Now For the Detail

Difference between Unfair Dismissal and General Protections Claim – Criteria for Lodging

Unfair dismissal claims have jurisdictional criteria that an employee must meet or satisfy, before they are eligible for a remedy under the Fair Work Act 2009 (Cth). Firstly, an employee must have been dismissed. The term dismissed is defined in the Fair Work Act 2009 (Cth). As a situation where a person’s employment has been terminated at the employer’s initiative, or a person was forced to resign because of the conduct or course of conduct engaged in by the employer.

Secondly, the employee must be an employee, on a regular and systematic basis (for casuals). They must not be a contractor and must not have been employed for a specified period, task, seasonal contract or traineeship arrangement. And was dismissed at the end of the period, task, season or arrangement.

Thirdly, the employee must have completed the minimum employment period with the employer. This being six months of continuous service for a large business or one year of continuous service if the employer is a “small business”. Under the Fair Work Act 2009 (Cth). A small business is a business that employs fewer than 15 employees, including casual employees that are employed on a regular and systematic basis.

High income threshold

In addition, the employee must earn less than the high-income threshold. (which is currently $158,500 gross per year) or be covered under a modern award or enterprise agreement. Lastly, the employee must lodge their claim within 21 days of their dismissal taking effect. This time limit is strictly enforced, and claims lodged outside the 21 days, will only be accepted in exceptional circumstances.

General protections claims do not such an extensive list of criteria

In comparison, general protections claims do not such an extensive list of criteria. In order to be eligible to lodge a General Protections Claim, an employee must have been dismissed, which is the same test as for unfair dismissal claims. Secondly, the employee must lodge their claim within 21 days of their dismissal taking effect, just like in an unfair dismissal claim.

However, the general protections provisions afford greater protection to not only employees. But include prospective employees, independent contractors (including prospective independent contractors). A person (the principal) who has entered into a contract for services with an independent contractor (including a principal who proposes to enter into a contract), and an industrial association (including an officer or member of an industrial association). There is also no high-income threshold or requirement for award or enterprise agreement and no minimum period of employment.

Ineligible to lodge a unfair dismissal claim

Despite less jurisdictional criteria for a General Protections claim, lodging this application is not a consolation prize for when you are ineligible to lodge an unfair dismissal claim. This means that just because you may be unable to lodge an unfair dismissal due to not meeting the requirements, you cannot automatically lodge a General Protections claim. These two claims have very different arguments and cover different aspects of the Fair Work Act 2009 (Cth), as discussed below.

general-protections-decision
Fair work Australia (Fair work Commission) show very little discretion if you lodge the wrong application, get advice, ring the FWC or ring us

Unfair Dismissal Regime and General Protections Provisions – Why are these claims different?

In the Fair Work Act 2009 (Cth), a person has been unfairly dismissed, if the Fair Work Commission is satisfied that an employee (who is protected from unfair dismissal) has been dismissed. That the dismissal was harsh, unjust or unreasonable, was not consistent with the Small Business Fair Dismissal Code. (In the case of small business employers) and was not a case of genuine redundancy (if applicable).

When assessing whether a dismissal is harsh, unjust or unreasonable, the Fair Work Commission must take into account:

  • whether there was a valid reason for the termination which relates to the employees’ capacity or conduct.
  • whether the employee was notified of this reason.
  • the employee was given any opportunity to respond to that reason.
  • whether there was any unreasonable refusal by the employer to allow the presence of a support person for any discussion relating to the termination.
  • whether the employee was warned about unsatisfactory performance prior to the termination if this was the reason for the termination.
  • the degree to which the size of the employer’s enterprise would likely impact on the procedures followed in making the termination.
  • the degree to which the absence of dedicated human resource manager specialists or expertise in the employer’s enterprise would be likely to impact on the procedures followed in the termination; and
  • any other matters the Commission considers relevant.

The unfair dismissal regime looks as to whether an employee deserved the sack, whether they had ever had any warnings and the procedure in which they were dismissed.

Employees who meet the jurisdictional criteria, are protected from unfair dismissal under the Fair Work Act 2009 (Cth). The unfair dismissal regime establishes a framework for dealing with dismissal or termination by balancing the needs of a business (including small business) and the needs of employees. This regime also acts to establish procedures which are quick, flexible and informal and address the needs of employers and employees and to provide remedies where a dismissal is found to be unfair, with an emphasis on reinstatement.

In contrast, the General Protections provisions, as set out in Part 3-1 of the Fair Work Act 2009 (Cth), prohibit employers from taking adverse action against an employee because of a workplace right or industrial activities and protects against discriminatory treatment on the basis of protected attributes or sham arrangements. These claims do not consider any principles of fairness regarding the termination itself, as in an unfair dismissal claim. The only consideration for the Fair Work Commission is whether or not an employee has a workplace right or has exercised a workplace right and whether an employer has acted adversely towards the employee because of this.

Protect-your-rights-today
Your rights are there, its how you excise them is the key

Workplace rights

Under the Fair Work Act 2009 (Cth). A person has a workplace right if they are entitled to the benefit of a workplace law or instrument. Has a role or responsibility under a workplace law or instrument. Is able to initiate or participate in a process or proceedings under a workplace law or instrument. Is able to make a complaint or inquiry to seek compliance with a workplace law or instrument.

Under the Fair Work Act 2009 (Cth), adverse action includes dismissal of an employee but encompasses a range of other actions such as prejudicing the employee. In turn injuring the employee in his or her employment or discriminating against them. In order to be eligible to lodge a general protections application involving dismissal (F8 Application). The final adverse action by the employer must be termination or dismissal of the employee.

An example of a scenario in which an employee will have grounds to lodge a claim could be has been dismissed after they made a complaint about bullying or sexual harassment. Although the employer may not disclose this as the reason for termination, the Fair Work Commission will look at the probability that the employee was dismissed because of their complaint.

General Protections provisions are very narrow

The difficulty of these applications and the most frequent reason that an applicant fails in a general protections case, is that he or she is held to have failed to establish this “because of” causative link. The General Protections provisions are very narrow. They require the causative link to be made out, in order for an employee to be successful. Thus, it is almost irrelevant whether the employee was dismissed in a fair way. Whether there was a reason for their dismissal or whether they had received any warnings in their employment.

different-types-of-claims
Establishing the difference between types of claims can be complicated

However, the legislation includes a reverse onus in relation to the reasons for taking an action.

This means that although the employee must still establish that they have a prescribed ground and have suffered adverse action within the meaning of the legislation. Once the employee alleges their employer took action for a particular reason, it is presumed that the employer’s action was taken for that reason unless the employer proves otherwise. The employee is relieved of the burden of proving the employer’s reason for taking an action. Thus, the employer must demonstrate that they terminated the employee for a reason, which is not prohibited.

Fair Work Commission Procedure and Remedies for Unfair Dismissal

If an employee lodges an Unfair Dismissal Application (Form F2), the Fair Work Commission will set the matter down for a conciliation conference. This conference is an informal method of attempting to resolve either of the two disputes. In this conference, an independent conciliator from the Fair Work Commission will assist the parties in exploring options for resolution. Try and help them to reach an agreement, without the need for a formal hearing or court proceedings.

In these private and without prejudice conferences, an employee can ask for a variety of remedies. Most commonly, an employee will seek:

  • compensation
  • to have their termination rescinded and for the employer to allow them to resign
  • for the employer to provide them with a Statement of Service.

Importantly, unfair dismissal claims have a compensation cap of 26 weeks. Or half the amount of the high-income threshold immediately before the termination. Whichever is lesser.

If the parties are unsuccessful in reaching an agreement for an Unfair Dismissal claim, the matter will automatically proceed to a formal conference or hearing within the FWC. Unless the employee chooses to discontinue their application. Unlike the conciliation conference, an arbitration is a formal process. Similar to a court trial, in which a member of the Commission decides for the parties what the solution should be. Whether there has been an unfair dismissal and decide the remedy. This decision would only be made after the parties have had a chance to present their evidence and arguments. A decision in the Fair Work Commission can take up to a few months. You can represent yourself or get representation.

In regard to remedies that can be awarded at arbitration by a Fair Work Commission Member, an employee can be awarded compensation if the Fair Work Commission is satisfied that reinstatement is inappropriate. Compensation in this form is designed to compensate unfairly terminated employees in lieu of reinstatement for losses reasonably attributable to the unfair termination. As a result, compensation cannot be awarded for shock, distress or humiliation.

Determining the amount of compensation

When determining the amount of compensation that may be awarded, the Fair Work Commission will take into account the employees’ length of service. The remuneration the employee would have received, or would have been likely to receive, if they had not been terminated. The efforts of the employee to mitigate the loss suffered because of the termination, such as looking for alternative work. The amount of remuneration earned by the employee from employment or alternative work during the period between the termination and making the compensation order. There is a compensation cap of 26 weeks or half the amount of the high-income threshold immediately before the termination. Whichever is lesser. At arbitration, the Fair Work Commission Member cannot order a Statement of Service be provided and the decision is publicly listed online for anyone to see.

dismissal-or-general-protections
Don’t be the ones fighting over what your claim is worth, approach it professionally, allot of employees lodge a claim and assume the rest will sort itself out.

Fair Work Commission Procedure and Remedies for General Protections Claims

Once an employee lodges a general protections application involving dismissal (F8 Application). The Fair Work Commission will set the matter down for a conciliation conference. This procedure is the same as in an unfair dismissal case and the remedies an employee can seek are virtually the same.

However, in addition to seeking compensation for economic loss due to the employee’s dismissal, they can also seek damages for shock, distress or humiliation.

There is also no cap on the amount of compensation that can be sought or awarded by a Court. However the court does look to the same factors as in an unfair dismissal claim. (i.e., length of service, the remuneration the employee would have received. Or would have been likely to receive, if they had not been terminated etc.). However, the Court will also look at the non-economic detriment of the employee, when deciding to award damages. This includes medical evidence or doctors’ reports which demonstrate pain and suffering.

If the parties are unsuccessful in reaching an agreement for a General Protections Claim. The Fair Work Commission is satisfied that all reasonable attempts to resolve the dispute have been, or are likely to be, unsuccessful, then the Commission must issue a certificate to that effect. A person has only 14 days after the day the certificate is issued by the Fair Work Commission, to make a general protections court application in the Federal Court or Federal Circuit court.

Federal Circuit Court

FCC may make any order the court considers appropriate. If the court is satisfied that a person has contravened, or proposes to contravene, the General Protections provisions. Orders that the Federal Court or Federal Circuit Court may make include an order granting an injunction. Or interim injunction, to prevent, stop or remedy the effects of a contravention. An order awarding compensation for loss that a person has suffered because of the contravention (which can include interest). Or an order for reinstatement of a person. However, the Federal Court or the Federal Circuit Court process and waiting for an order, can take years. In turn costing tens of thousands in legal fees.

getting-the-right-compensation-is-important
Get what is rightfully yours, we have several pages on our web site, what your case is worth

How Can We Help with your dismissal?

Are you looking at making a dismissal claim but are unsure about how to approach the situation? You may need to seek advice and/or representation through a paid agent or lawyer. As independent workplace advisors. A Whole New Approach (paid agents) can provide you with representation in your unfair dismissal or general protections claim. A Whole New Approach has run and been successful in over 10,000 cases in the Fair Work Commission. The Anti-Discrimination Commissions, Boards and Tribunals.

We draft the claims and applications on your behalf to a Federal Court standard. Then run the conciliation conferences, run arbitrations and have thousands of decisions published in the various jurisdictions. Although we would act as your advocate, we provide even handed advice in regard to the prospects of your case.

If you want to discuss Difference between Unfair Dismissal and General Protections Claims give us a call. AWNA always appreciate input or debate. We are A Whole New Approach P/l. We are not employment lawyers, but the nations leading workplace advisors. Leaders in workplace and community commentary, our name published in over a 100 tribunal decisions. Gary Pinchen the author of some 200 articles, published across the internet. If you are unsure whether you have a claim or which application you can pursue. Please give us a call on 1800 333 666. For a free and confidential consultation. All Fair work Australia and Fair work Commission matters. Its free, we can help you in deciding which dismissal criteria is best for you.

We work on a national basis, including NT, Victoria, NSW

Want to discuss any termination of employment issues or diversity in the workplace problems. We’d love to hear from from you, we are here to help.

Another article on the various dismissals that may be helpful to you, click here

A blog that has attracted allot of readership on your workplace rights, click here


General Protections and Adverse Action

General-Protections-and-Adverse- Action
General Protections and Adverse Action, it can be complicated, get advice. Please read on, there is some great, precise information that is set out for you

General protections and adverse action

What does it mean?

The General Protections provisions are set out in Part 3-1 of the Fair Work Act 2009 (Cth). Under the Fair Work Act 2009 (Cth). Employers are prohibited from taking adverse action against an employee because of a workplace right or industrial activities. This protects against discriminatory treatment on the basis of protected attributes and sham arrangements. General Protections and Adverse Action, are sometimes intertwined and can be confusing.

The meaning of the term ‘adverse action’ depends on the relationship between the people involved. In respect of action taken by an employer against an employee. ‘adverse action’ means dismissing them, injuring them in their employment, altering their position to their prejudice, or discriminating between them and other employees.

Employees have workplace rights

Under the Fair Work Act 2009 (Cth). A person has a workplace right if they are entitled to the benefit of a workplace law or instrument. In turn has a role or responsibility under a workplace law or instrument. They are able to initiate or participate in a process or proceedings under a workplace law or instrument. Is able to make a complaint or inquiry to seek compliance with a workplace law or instrument. Thus, an employee can make a complaint about bullying and the employer is prohibited from taking any adverse action, such as dismissed them, because of their complaint.

Employee has a workplace right not to be discrimination against

Further, an employee has a workplace right not to be discrimination against. Thus the employer is prohibited from taking any adverse action because of a person’s protected attribute. This includes the person’s race, colour, sex, sexual preference, age, physical or mental disability, marital status, family. Carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin.

rights-to-a-stress-free-and-safe- workplace
Most employees just want to be treated fairly, with respect, not be subject to adverse action

Protection against temporary absence

Under the Fair Work Act 2009 (Cth). An employee is also protected against dismissal only for temporary absence in their employment due to illness or injury. An employer must not dismiss an employee because the employee is temporarily absent from work due to illness or injury of any kind.

However, the employee will not be protected if the employee’s absence extends for more than 3 months. The total absences of the employee, within a 12-month period, have been more than 3 months collectively. And the employee is not on paid personal or Carer’s leave for the duration of the absence.

If you feel your employer has acted adversely towards you because of a protected attribute or because of your complaints. Please give us a call on 1800 333 666 for a free and confidential consultation.

Types of General Protections Claims

In the Fair work Commission, there are two different General Protections applications which can be lodged. This depends on the status of your employment. If an employer has dismissed an employee and they believe this action was done because of their workplace right or exercise of workplace right. The employee has 21 calendar days after the dismissal took effect, to lodge an application in the Fair work Commission.

If an employee can demonstrate that the employer is acting adversely towards them, but has not dismissed them, and this is a result of the employee exercising their workplace rights. The employee can lodge an F8C Application. Adverse action in this context can include injuring the employee in their employment. Altering the position of the employee to the employee’s prejudice. Discriminating between the employee and other employees of the employer.

i-feel-like-I'm-about-to-get-jabbed-by- the-boss-or-worse-dismissed.
Some employers make you feel like they are going to inject you with something, don’t run away, resign, stand up for yourself. Employers will see reason, its a matter of articulating your argument / complaint / concerns. Make a list, call for a meeting, be professional, make your point.. If this doesn’t work, give us a call, get advice

F8C application

Through an F8C Application, the employee can attempt to resolve the issues they are experiencing at work and potentially restore the employment relationship. However, if an employee does not wish to continue their employment given what has occurred, the employee can see an exit package, by way of resignation, to terminate the employment relationship. The employee can also seek monetary compensation for economic loss and non-economic loss in the form of general damages for hurt, distress and humiliation.

One of the most frequent reasons that an applicant fails in a general protections case is that he or she is held to have failed to establish an arguable case to the effect that the adverse action complained of (such as dismissal) was taken for a prohibited reason, because of a protected attribute or because of the employee’s complaints. The General Protections provisions are very narrow and they require the causative link to be made out, in order for an employee to be successful.

Employee was given a warning

In Hammond v Boutique Kitchens & Joinery Pty Ltd, an employee was given a warning. Following the warning, the employee was upset and she visited her doctor to obtain a medical certificate for stress leave. Later that same day she was dismissed. The employee claimed her dismissal was a breach of s 352, which prohibits an employer from dismissing an employee ‘because the employee is temporarily absent from work because of illness or injury’.

However, the employee did not allege that she was dismissed because she was on sick leave – she believed that the dismissal while she was on sick leave was enough to constitute a breach. The Federal Magistrates’ Court dismissed her claim, finding that without the causal link, there was no breach of the General Protections provisions.

What if a prohibited reason was one of a number of factors the employer considered? If the employee was dismissed because of particular conduct, which was related to his or her protected attribute? How far does the causal link go?

Your-Employment-Rights-With-the-Pandemic
Everybody knows they have some sort of rights, what they really are or mean, find out.. Employees are getting confused in the new era of ethical behaviour and the values that companies should have. They are really concerned with flexibility and work-life balance. Where the focus still has to be on the adverse action if you want to access the Fair work Commission regime.

The Presumption and Onus Enactments

In order to help define the casual link, the Fair Work Act 2009 (Cth). Provides that ‘a person takes action for a particular reason if the reasons for the action include that reason’. The effect of this section is that the proscribed reason for the impugned conduct need not be the sole or dominant reason, but must comprise a ‘substantial and operative factor.

Secondly, the legislation includes a reverse onus in relation to the reasons for taking an action. This means that although the employee must still establish that they have a prescribed ground. Have suffered adverse action within the meaning of the legislation, once the employee alleges their employer took action for a particular reason, it is presumed that the employer’s action was taken for that reason unless the employer proves otherwise. The employee is relieved of the burden of proving the employer’s reason for taking an action.

In Board of Bendigo Regional TAFE v Barclay. The High Court observed that the Parliament intended these two legislative enactments to provide a balance between the parties to a workplace dispute by, first, establishing a presumption in favor of an employee who alleges that an employer had taken, or is taking, adverse action against him or her because of a particular circumstance or fact of the kind specified in any of ss 340, 346, 351 or 354. Secondly, enabling the employer to rebut that presumption.

An important presumption and onus that these sections create are necessary because the employee cannot know or prove what was in the decision-maker’s mind when he or she took the adverse action. The court must enquire into, and make findings about, the mental processes of the decision-maker for taking the adverse action complained of.

General-Protections-and-Adverse-Action
Changing the workplace culture by your actions is good for everybody. Making a difference to peoples lives is a commendable trait. The general protections and adverse action legislation as sent our in the Fair work Act 2009 has changed the industrial relations landscape for ever.

The Employer must prove, that none of his or her reasons for that action included as a substantial and operative factor

Accordingly, the employer or decision-maker acting on its behalf who took the alleged adverse action must prove, as a fact, that none of his or her reasons for that action included as a substantial and operative factor any reason or intent that the Act proscribed him or her from having. As French CJ and Crennan J held, the Court must determine the question of fact, namely “why was the adverse action taken?”.

Further, there must be more than a mere temporal connection between the adverse action and alleged proscribed reason. Direct evidence of the employer or decision-maker is generally required to rebut the presumption. An express denial will not usually suffice, particularly where contradictory evidence/other facts proven. Where direct evidence of decision-maker not given, or not given on the reasons for termination, the statutory presumption has in the past been found not rebutted.

looking-for-another-job,-because-of- adverse-action,-I'm-being-forced-to- resign
Many employees just look for another job, being confrontationist is not for them. However you cannot walk away in life every time life gets too hard. A lot of our time is spent empowering employees to make a decision, them working out what’s in their best interest, not necessarily the claim its self.

General Protections and Adverse Action, Initiating a General Protections Claim

As independent workplace advisors, (we are not lawyers) we can provide representation in your general protections claim. If your looking for a lawyer, give us a call first, fixed fees or no win, no fee. We can advise you as to whether you have an arguable case and lodge the application on your behalf. Once an application is lodged, the Fair Work Commission will set the matter down for a conciliation conference, a private proceeding conducted by an independent conciliator.

This conference is an informal method of resolving a General Protections dispute in which an independent conciliator will assist the parties in exploring options for resolution. Help them to reach an agreement without the need for a formal hearing or court proceedings.

Conclusion to “General Protections and Adverse Action”,

I hope you enjoyed this article, its comprehensive, this area of the Fair work Act can be very complex. If you are unsure whether you have a claim, please give us a call on 1800 333 666 for a free and confidential consultation. Sacked?, dismissed?, discriminated against?, bullied?, harassed? Excised a workplace right? Not sure what to do next? Make the call, its free. Nothing to lose and everything to gain. We do both no win, no fee work and paid work, we are happy to discuss your options.

Fairwork Australia, Fair work Commission matters including, abandonment of employment, serious misconduct, probation, redundancy, anything to do with the workplace. We work in all states, including Victoria, NSW, QLD

Articles similar to “general protections and adverse action”

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Employee gets $100,000 for unfair dismissal claim, click here

https://unfairdismissalsaustralia.com.au/general-protections/general-protections-awarded-650k-for-uni-employee/

Voted Australia leading workplace representatives

General Protections Claim, the Federal Court orders $5 million-plus

general-protections-claim

A big pay day

General Protections Claim, the Federal Court orders $5 million-plus. In a significant general protections ruling. The Federal Court has today ordered a large public enterprise software company, TechnologyOne to pay more than $5.2 million in compensation, damages and penalties. This is to a senior executive sacked after he made bullying and other complaints.

Justice Duncan Kerr, in a general protections judgment of about 300 pages. Found that the employee had established that by dismissing him, took adverse action against him because he exercised a workplace right when he complained multiple times about bullying.

He ordered TechnologyOne Limited to pay the former employee $2,825,000.00 for his future economic loss, $756,410 to compensate his forgone share options. $1,590,000 in damages for breach of contract, $10,000 in general damages and $47,000 in penalties.

The payout was a record

The lawyers, which represented the employee, said it believes the payout is a record for such a case in the Fair Work division of the Federal Court. In setting penalties, which included $7000 against the company’s executive chair/chief executive, Justice Kerr said he “twice rejected professional HR advice” that it would be unfair the employee “on the basis of mere allegations”. He found the executive chair accessorily liable.

“In the end, [the chief executive’s] choice was to stand with the bullies rather than the bullied ” To achieve effective deterrence, CEOs in like positions need to know that such temptations as he faced are to be resisted: and that there will be a not insubstantial price for failing to do so”

Justice Kerr

How much is my general protection claim worth?, click here

Finally a decision that sends a strong message

Finally a decision that sends a strong message to companies and directors that if you do the wrong thing, then you will, be punished, you need to pay. That dismissals that are essentially illegal. By breaching the Fair work Act, cannot be enacted by employer with little consequences, by paying or getting awarded against them a bit of “go away money”.

This case is clearly not the typical outcome of a general protections claim, (click here for see “what’s my claims worth“), but it does demonstrate that the Fair work Commission and in turn the Federal court are clearly losing patience with Employers.

dismissed-out-the-door
You want compensation. Many employees are to polite to chase what they should be entitled to. Everybody is entitled to a fair go. Don’t apologize for this.

I keep reading General Protection decisions where employees have been dismissed from their positions in the most horrendous circumstances. In turn they lodge a general protections claim and get awarded say $10,000 with a legal bill that would have to be more than this. Finally a decision regarding a termination that set new case precedent as to what can be awarded. But before employees go to the representatives / lawyers regarding their dismissal, what would the legal expense be? In the TechnologyOne decision, there were some 14 hearing days. A decision of over a 1000 paragraphs, both sides represented by quality law firms, I would put both sides legal bill at over $200,000.

Historically protections from unlawful actions being taken in or in relation to the workplace have been scattered throughout legislation. The introduction of the Fair Work Act 2009 saw these provisions collected together in a single Part.

The principal protections have been divided into:

https://www.fwc.gov.au/what-are-general-protections

Prohibited from taking adverse action

Certain persons, including employers, principals, employees and industrial associations; are prohibited from taking adverse action against certain other persons. This is because the other person has, or exercises, a workplace right, or engages in industrial activity. Adverse action includes dismissal of an employee.

However it also includes a range of other action such as prejudicing an employee or independent contractor and organizing industrial action against another person. Coercion and misrepresentation in relation to workplace rights and industrial activities are also prohibited.

https://www.fwc.gov.au/what-are-general-protections

Companies underpaying employees

The Fair work Ombudsman does some good work chasing multi national companies who under pay employees, but seems obsessed in chasing coffee shops and farmers. Spending inordinate amount of public money doing so. Perhaps funding General protection claims by employees would be money better spent.

Who’s got $100,000 to fund there dismissal case, not many, but the Ombudsman does. It wouldn’t take too many decisions like the TechologyOne to bring Employers into line, and stop acting unlawfully against Employees.

“General Protections Claim, the Federal Court orders $5 million-plus Compensation” is a great article, its not about wow I want to be greedy, I want what I can get, but about getting a settlement that reflects and recognizes your particular circumstances.

Late-Unfair-Dismissal-FWC-Allows- Application
Not sure what to do? Dismissed, resignation, just wanting to know what your case is worth, give us a call. Its cost versus benefit versus risk. Explore your options

Is going to court worth the expense and emotional cost?

For some people, the pressure can cause loss of sleep, anxiety, anger and problems dealing with others, including their own families, There may even be serious psychological consequences such as depression.

Going to court should always be the last resort to bring an employer to a settlement. All efforts should first be used to agree a negotiated settlement between the parties. Litigation is expensive and unpredictable and should only be used when other efforts have failed.

Even once litigation has commenced, efforts should still be made to settle and a regular review performed to identify the optimum time for settlement. It is vital not to forget the emotional energy and time that goes into litigation, which can be more draining than the cost. What we try and achieve at AWNA is to get cases to mediation and try and resolve matters, even if this means compromise. This is not a sign for a east life. There are no certainties in this work.

The difficulty is by this stage too often we see cases where litigation has become personal. One side or the other will not give up, or take a step backwards.

General Protections Claim, the Federal Court orders $5 million-plus

A Whole New Approach P/L we are not lawyers, but very experienced workplace specialist. We have been lodging general protections claims and representing employees in the Fairwork Australia, Fair work Commission. This is since general protections and adverse action came into legislation in 1st July 2009 at the Fair work Commission.

Our claims are drafted to a federal court standard. If the matter needs to be referred to the Federal Court, we have barristers that will represent you. Ring us, discuss your workplace issues, it cost you nothing, reserve your rights. Probation concerns, redundancy, constructive dismissal, serious misconduct, abandonment of employment, whatever, we are the nations best representatives

Call 1800 333 666

Another article on compensation, click here

Maximum compensation in flawed investigation, click here

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Employee versus contractor issue (this will effect your compensation, click here

Less Pay More Jobs For Female Barristers

This headline is from an article published in the “The Australian” newspaper today (Sept 18, page 6)

less-pay-more-jobs-for-female-barristers
Pay issues outstanding? Equal work for equal pay

Less Pay, More Jobs, For Female Barristers. I wrote an article on the blog on exactly this topic (16th of Sept) how more females are graduating, entering various professions. How they get less pay than their male equivalents.
Its ironic, the legal industrial that represents people / workers in discrimination and sexism claims doesn’t treat its own workforce equally.
It’s the old adage “do as I say, not what I do”
Still small steps. I raised the issue the other day, now “The Australian” is publishing material on it, at least its getting more and more in the conversation.

Its not just about the pay rates

Its not just about the pay rates. It flows onto promotion, how workers get treated. If you can’t even get equal treatment in the workplace regarding pay, do you seriously think you get equal treatment when comes to performance, discipline issues, dismissals?

It seems common place for male lawyers to take the Friday afternoon, to have a long lunch with their friends (referred to as networking)., A female lawyer wants to go home to see her kids in the afternoon after working extraordinary hours for the week and she runs the risk of being laughed at. She is seen as “soft”, “not committed”.

This approach applies in a lot of professional workplaces. It is slowly changing, its inevitable, why the wait, act now!! Call us to chat, or do something about it.

Employees of any gender can take the employers discriminately behaviour in relation to wages, conditions, promotion issues to the Fair work Commission (F8C application). In the alternative there are equal opportunity and human rights commissions. Anti dismission boards in every state and territory in some form. You have rights, its how you excise them is the key.

Less-Pay-More-Jobs-For-Female-Barristers
Equal pay brings allot of benefits for all concerned. Increased productivity, less discrimination claims, less unlawful dismissals, less resignations. Increased harmony in the workplace. However to some degree this conflicts with typically competitive industry. Where everybody strives to get ahead, seniority means more fees, more income.

Historical thinking, less pay, more jobs

Historically, commentators and academics consider two theories to explain the gender pay gap.

The first, human capital theory, puts the emphasis on women’s choices to explain why their pay is less than men’s pay. It hypothesizes that individual characteristics or qualifications. Age, education, training, work experience and history. These are responsible for differences in pay between all workers.

This theory says that some workers are paid less because, for example, they lack the needed level of education, training or work experience compared to their competitors. The theory further suggests that women’s wages tend to be lower because they choose to work fewer hours. Due to family and childcare responsibilities, choose occupations and industries that offer lower wages. however more flexibility or expect their career paths to be discontinuous.

All those choices lead to women accumulating less human capital; as a result, the theory goes, women are paid less than men because they do not achieve the qualifications required to assume positions in true competition with men.

we-need-diversity
We need to work towards more than token diversity. We all need to get out of our comfort zone, contribute to the debate, make a difference as they say


Discrimination

The second theory, called the discrimination theory, hypothesizes that the discriminatory practices in the workplace are the main culprits of the pay gap. It suggests that discriminatory practices lead to differential treatments. Which then may lead to biased assessments and expectations. Reflected in productivity, performance evaluation, and appraisal towards one group of workers over others. Intentional and unintentional discriminatory practices are common. (male barristers tend to get more senior briefs and longer trials).

Lets face it we are all more comfortable within our own socioeconomic groupings. What’s not supposed to happen this is reflected in the workplace. ie “the boys club”, speaking a particular language to the exclusion of others. Some laws firms now, want the name, school and university left off the resume as part of the selective process. So the selection process is non biased, giving females, non private school applicants and less credentialed university graduates a fair go.

Researchers found that when female musicians auditioned for symphony orchestras, their chance of being hired went up when they auditioned behind a screen, concealing their identity from their interviewers.

diversity-and-inclusion
Diversity, what’s wrong with that? It can create companies of character, non stereotyped individuals. It can infuse competitiveness, create companies of values, that are ethically driven, that are admired by others. Everybody wants to work for.


Less Pay, More Jobs, For Female Barristers

We are A Whole New Approach P/l, we are not lawyers, but the nations leading workplace advisors. I hope “Less Pay, More Jobs, For Female Barristers” was of interest to you. If you have concerns, questions, worried about unequal treatment, your salary compare to others? Call us. We are leaders in workplace commentary, diversity and equity in the workplace. give us a call, its free, confidential, prompt and honest. All FWC matters, including unfair dismissals, general protections, workplace disputes. We work in all states, including Vic, NSW, Qld, Tas, SA, WA.

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AWDR is a web site owned by us, 150 pages of good workplace advice and commentary, enjoy

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