General Protections Claims are on the rise.
What is a general protections claim?
They are claims made against an employer for taking adverse action. This is any action that puts an employee at a disadvantage, such as:
- a demotion
- terminating their employment for exercising workplace rights, or for
- reasons of discrimination.
Why are general protection claims on the rise?
In our experience, we are seeing more and more of these cases.
There are a few reasons they are gaining momentum…
When an employee is terminated, they can either:
There is no minimum employment period
The employee can lodge a General Protections claim no matter the employment period. The qualifying periods are:
- Unfair Dismissal provision – employed for longer than 6 months (or 12 months for a small business employer).
- General Protections claim – no minimum employment period for this approach.
The potential penalties are not capped
The potential penalties for employers are not capped under the General Protection claim. For Unfair Dismissal cases, the maximum penalty is 6 months of wages. So the ex-employee could potentially get more money from a General Protection claim.
How to manage a general protections claim
The steps in managing a General Protection Claim are:
- Respond to the initial claim
- Go through a conciliation process
- Proceed to the Federal Circuit Court, if the case is not settled during the conciliation.
What happens at the Federal Circuit Court?
A lawyer must represent you at the Federal Circuit Court. This can cost between $40,000-$60,000. So, whichever way you look at it, you lose if you have to go to Court.
If you win, you are out of pocket for your legal fees. If you lose, you are out of pocket for the legal fees and then whatever penalties the Court decides on top. If the claim is upheld then usually the penalties are more than nominal.
So – if the case is dismissed you lose. And if the claim is upheld you lose even harder.
And, to make it worse, there is no science to how the case will go when it’s heard in Court. There is a “reverse onus” of proof under General Protection applications. That means that the employer is effectively guilty until proven otherwise. The decisions can go either way.
Was the employee sick or dishonest? A case study
The employee applied for 2 days of annual leave, which was not approved. So the employee said to his manager he would then be sick. He went to his GP and got a medical certificate. He then took sick leave for the same two days off that he had applied for annual leave for.
When the employee returned to work, he was summarily dismissed for dishonesty. The matter went to the Federal Circuit Court under the General Protections provisions of the Fair Work Act. It was alleged that the employer took adverse action against the employee for:
- exercising his workplace right, and
- for being temporarily absent from work due to illness or injury.
The Court looked at the actual reasons that influenced the employer. It decided that the reason for the termination was for dishonesty, as the manager did not believe the employee was ill in the first place.
It was not because the employee was ill or absent from work for a few days. The Court dismissed the application for a General Protections remedy. (CFMEU v. Anglo Coal (Dawson Services) Pty Ltd  FCAFC157)
In this case, the employer “won” but would have most likely paid very hefty legal fees. Particularly becasue the case went to appeal at the Full Court of the Federal Circuit. There are no good outcomes for employers in these cases, because even when you win, you lose.
How to protect against general protections claims
Your best bet to protect yourself from General Protections Claims is to:
- make sure that you always have a valid reason for termination
- make that reason clear.
Remembering the “reverse onu”s of proof. It’s the employer’s responsibility to show that they met the legal requirements.
If you need guidance on how to deal with difficult employee situations, please give us a call at HR Gurus. We will be happy to assist.
It’s a lot cheaper to get help and avoid a general protections claim in the first place. Rather than have to pay penalties, settlements and legal fees.
If you have any questions give HR Gurus a call on 1300 959 560 where our qualified and experienced team are here to help!