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
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 2009 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. The Federal court has certainly also lost patience with employers who do not pay the right award wages. Particularly when they knew it or should have known it. We will point out again you should not lose your job for enquiring as to whether you have been paid properly or insisting on pay slips.
Compensation and your legal bill
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
- protections relating to workplace rights. (which can be broadly described as employment entitlements and the freedom to exercise and enforce those entitlements)
- engaging in industrial activities. (which encompasses the freedom to be or not be a member or officer of an industrial association and to participate in lawful activities, including those of an industrial association)
- other protections. Including protection from discrimination, and
- sham arrangements.
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
Award of Compensation
Although the award of compensation under s.545(2)(b) of the Act is a statutory entitlement, the usual approach to the calculation of economic compensation under s.545(2)(b) of the Act is, so far as a monetary amount can achieve, to place the employee in the position he or she would have been in, if the employer had not contravened the Act. In other words hadn’t been dismissed. there are two elements to it, the period that an employee would reasonble expected to be out of work. further gneral damagees for paid and suffering.
The calucations of this is complex, can be uncetain and almost no two cases are ever the same. So it become hard to predict. what you may achive from your case should be considered before you start the journey into the federal court. Get legal advice. You want your money (fees) back with interest. It is simply not worth the risks involved in the Federal court to break even.
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.
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.
Which claim do I lodge?
Sometimes you can either lodge a general protections or a unfair dismissal claim. Choose wisely. The laws are different that apply to the two types of claims. There is a strict 21 days to lodge either claim. It is extremely difficult to change direction once the claim is in. Usually if you find out to have the wrong claim in, or the other claim is stronger or you find your simply not allegeable to pursue the claim you put in, you only find out once your past the 21 day rule. It is then too late to lodge a new claim. There are exceptions to this rule, but they are extremely limited.
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
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