General Protections

PROTECT YOUR RIGHTS

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An employee has 21 days to initiate a claim, it is highly recommended one seeks professional representation in order to ensure a claim is submitted correctly and to maximize their chances of compensation.

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 and protects against discriminatory treatment on the basis of protected attributes and sham arrangements.

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What is Adverse Action?

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, 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 Adverse Action

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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general protections and adverse action

Who is Protected?

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, including 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.

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What is a 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. 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 dismissals an employee, because of this workplace right or because the employee has or has not exercised a workplace right.

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general protections and adverse action

The casual link between adverse action and workplace rights

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. This means the Commission must determine which of the circumstances are more likely to have occurred on the balance of probabilities and in light of all the facts established in the proceedings.

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.

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Additional protections 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 favourably 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. Discrimination in this context is not limited to a direct and conscious distinction based on an employees’ protected attribute but could encompass indirect discrimination. Indirect discrimination is conduct that appears neutral but impacts disproportionately on a group with a particular protected attribute and 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 as a 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.

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general protections and adverse action

Sexual Harassment

Sexual harassment, as defined under state specific anti-discrimination laws or falling under sex discrimination, is unwanted or unwelcome sexual advances, requests for sexual favours 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 offence, humiliation or intimidation.

Protection Against Dismissal

The General Protections provisions provide persons with protection against dismissed 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. 

Sham Arrangements

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.

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ageneral protections and adverse action
general protections and adverse action

Coercion and Undue Influence

Another protection afforded under the General Protections provisions is coercion and undue influence or pressure. A person must not organise, take or threaten any action against another person 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 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.

General Protections Provisions

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.

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general protections and adverse action

Remedies

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, 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.

Initiating a General Protections Application

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 unfair 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, 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.

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      What's My Case Worth

      Arbitrator: Deputy President Asbury

      Date: 22 May 2020

      Grounds of discrimination:

      • Pregnancy
      • Disability (gestational diabetes, resulting from pregnancy)

      Exercise of a workplace right:

      • Taking personal leave to attend medical appointments

      Adverse action:

      • Termination, as a purported redundancy

      The Applicant, Ms On Ni Liu, was employed by the Respondent, Compuworld Pty Ltd, in the full-time position as Receptionist/Accounts since September 2008 until November 2018. The Applicant was pregnant and was suffering from gestational diabetes as a result. The Applicant inquired about her entitlement to take sick leave to attend scheduled medical appointments for her pregnancy and resulting diabetes.

      Soon after, the Applicant was given a letter stating that she was being terminated due to redundancy. Although the letter stated that the redundancy was due to a downturn in sales, the Applicant argued that she was dismissed because she had exercised her workplace right to enquire about her leave entitlements and because of her pregnancy and physical disability (gestational diabetes). Additionally, the Applicant believed she was dismissed because she would have taken maternity leave soon.

      The matter was not resolved at conciliation and proceeded to arbitration, where Deputy President Asbury found that the Respondent contravened the Fair Work Act 2009 (Cth) and ordered the Respondent to pay the Applicant compensation as follows:

      Compensation:

      • $5,768.00 for past economic loss for two months
      • $13,330.80 for loss of entitlement to Commonwealth Government paid maternity leave scheme
      • $15,934.10 for future economic loss
      • $2,061.70 in superannuation contributions for past and future economic loss.

      TOTAL: $37,094.60 (subject to applicable taxes).

      https://www.fwc.gov.au/documents/decisionssigned/html/pdf/2020fwc2569.pdf

      Arbitrator: Commissioner Wilson

      Date: 26 June 2015

      Exercise of a workplace right:

      • Temporary absence for illness or injury
      • Protection of industrial activity

      Adverse action:

      • Performance warning
      • Changed work conditions
      • Dismissal, either through forced resignation or the Respondent ending the Applicant’s employment two months earlier than in her resignation.

      The Applicant, Ms Lynn Masson-Forbes was employed by the Respondent, Gaetjens Real Estate Pty Ltd, in the position of ‘General Manager Retirement Services’. In May 2014, the Applicant became ill, subsequently resulting in her being away from work until November 2014.

      Almost immediately after returning to work, the Applicant was given a performance warning, even though she had validly not been working for the past six months due to her illness. Significant changes were also made to the Applicant’s working arrangements, including changes to: her office area, the reporting arrangements of sales staff who had previously reported to her, directions about how she was to work, performance expectations, refusing to permit her to attend union meetings.

      As a result of the adverse action she experienced upon returning to work, consisting of her changed work conditions and performance warning, the Applicant had no other choice but to resign from her employment. The Applicant’s absence was partly for psychological or psychiatric illness, and the treatment to which she was subjected upon returning exacerbated her condition. The Applicant resigned on 24th November 2014, stipulating that she would cease employment on 30th January 2015. However, the Respondent concluded her employment on 1st December 2014, almost two months earlier. In terminating her employment early, the Respondent took further adverse action against the Applicant.

      Compensation:

      • $17,451.00 for economic loss (lost remuneration)
      • $3,000.00 for non-economic loss (hurt, humiliation and distress). 

      https://www.fwc.gov.au/documents/decisionssigned/html/2015fwc4329.htm

      Arbitrator: Commissioner Simpson

      Date: 12 September 2018

      Compensation:

      • $5,000 for non-economic loss
      • $15,219.75 for economic loss.

      https://www.fwc.gov.au/documents/decisionssigned/html/2018fwc5692.htm

      https://www.fwc.gov.au/documents/awardsandorders/html/pr700264.htm

      Date: 6 September 1995

      Industrial Relations Court of Australia

      Judges: Wilcox CJ, von Doussa and North JJ 

      Discrimination:

      • Race

      Adverse action:

      • Termination

      The Respondent dismissed the Applicant for not being Croatian, thereby discriminating against her on the basis of race.

      Compensation:

      • $12,100 for loss.

      https://www.judgments.fedcourt.gov.au/judgments/Judgments/irc/1996/1996irca0608

      Date: 26 October 2012

      Discrimination:

      • Disability (illness)

      Adverse action:

      • Termination

      The Applicant was terminated from his employment because “he was always sick”. Illness was deemed to be a disability, upon which grounds the Applicant was discriminated against in being terminated.

      Compensation:

      • $16,500 paid to the Union as a pecuniary penalty.

      Date: 8 July 2011

      Federal Court of Australia

      Judge: Rares J 

      Discrimination:

      • Disability

      Adverse action:

      • Termination 

      The Applicant was terminated from his employment due to his disability of a lumbar spine injury, which he had incurred at work. The Respondent argued that the Applicant was terminated due to poor performance, but it was clear that the Respondent knew of the Applicant’s injury and discriminated against him on this basis in terminating him.

      Compensation:

      • $25,000 paid to the Applicant as a pecuniary penalty.

      https://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/single/2011/2011fca0992

      Date: 9 August 2013 

      Federal Circuit Court of Australia

      Discrimination:

      • Family or carer’s responsibilities

      Exercise of a workplace right:

      • Taking personal leave

      Adverse action:

      • Written warning
      • Transfer of location to her disadvantage
      • Forced resignation

      The Applicant left work early to pick up her son from school, in line with her family or carer’s responsibilities. However, upon returning to work, she received a warning letter. The Applicant’s employment was also transferred to another location further from her home. Eventually, the Respondent’s conduct was such that it effectively ended the employment relationship between the Applicant and the Respondent, leaving the Applicant with no other choice but to resign.

      Compensation:

      • $32,130.78 for loss.

      Date: 16 May 2013

      Federal Court of Australia

      Judge: Gray J

      Exercise of a workplace right:

      • Making complaints about a supervisor

      Adverse action:

      • Redundancy

      The Applicant had made several complaints about her supervisor’s behaviour. As a result, the Respondent made the Applicant redundant.

      Compensation:

      • $37,000 as a pecuniary penalty.

      https://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/single/2013/2013fca0451

      Date: 10 October 2014

      Federal Circuit Court of Australia

      Exercise of a workplace right:

      • Making complaints about underpayment

      Adverse action:

      • Stopped receiving casual shifts

      The Applicant was employed as a bartender in a casual position. The Applicant complained about being underpaid, and as a result, the Respondent stopped giving the Applicant shifts.

      Compensation: 

      • $8,120.08 for unpaid wages and superannuation.
      • $2,500.00 as damages for distress, hurt and humiliation.
      • $685.07 as interest.

      Date: 11-21 March 2019, 25-26 July 2019 and 28 May 2020

      Federal Court of Australia

      Judge: Rangiah J

      Exercise of a workplace right

      • Making a complaint about the conduct of a colleague

      Adverse action:

      • Threatened investigation into the Applicant’s conduct

      Industry:

      • Higher Education

      The Applicant was a lecturer at the University of Queensland. On 12th April 2010, the Applicant exercised his workplace right to make a complaint about Professor Moore, who was also employed by the University.  Professor Moore subsequently took adverse action against the Applicant by informing two other professors of the contents of the Applicant’s complaint. As a result, the University took further adverse action against the Applicant on 8th July 2010 by threatening to commence an investigation into his conduct.

      Compensation:

      • $15,000 for mental and emotional distress resulting from contravention of general protections laws.
      • No compensation was awarded for any economic loss.

      https://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/single/2020/2020fca1005

      Federal Circuit Court of Australia

      Judge: Raphael J

      Exercise of a workplace right:

      • Taking sick leave

      Discrimination:

      • Sex
      • Marital status
      • Temporary absence from work

      Adverse action:

      • Termination

      Industry:

      • Foreign Consulate

      The Applicant, Mrs Kassis, was a consular employee working at the Sydney Consulate of the Republic of Lebanon from January 2005 until February 2011. There were constant issues with non-payment or underpayment of the Applicant’s wages and legal entitlements throughout her employment, which she was ultimately entitled to recover through her legal action, along with compensation for breaches of the general protections laws. After falling ill due to stress from her workplace, the Applicant exercised her workplace right to take sick leave, as authorised by a medical certificate. The Applicant was duly dismissed.

      Compensation:

      • $50,000 in damages in response to the employer’s conduct
      • $333,296.42 for loss of future earnings
      • $64,889.90 for underpayment of wages
      • $24,234.79 for non-payment of superannuation
      • $5,555.66 for underpayment of annual leave entitlements
      • $3,421.38 for leave loading entitlements
      • $4,513.52 for non-payment of long-service entitlements
      • $4,234.50 for non-payment of notice upon termination
      • $20,000 in interest.
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