General protection claims, also referred to as adverse action claim, are increasing in popularity amongst employees, particularly if they seek legal advice or are a member of a union.
Typically, general protection claims are commenced where an employee believes that adverse action has been taken against them (e.g. they were dismissed) because they exercised a workplace right or because they possess a discriminatory attribute. However, these claims can be complex and there are numerous ways an employee can approach a claim in this jurisdiction.
Unlike an unfair dismissal claim, there is no minimum period of employment required to be served before an employee can make a general protection claim, and these claims can be made pre-employment, during employment or after termination of employment.
If you receive a general protection claim, seek legal advice immediately.
Common mistakes we see that can result in a general protection claim
- Terminating an employee’s employment soon after that employee has made a complaint or enquiry in relation to their employment, for example, where an employee has:
- complained about their pay or hours of work;
- made a workers’ compensation claim;
- made a bullying or sexual harassment complaint;
- taken, or is taking, a period of personal leave or parental leave; or
- raised a workplace health and safety concern.
- Believing that the minimum period of employment which applies to unfair dismissal claims applies to general protection claims when it does not.
- Not providing employees with reasons for the termination of their employment
Key risks of getting it wrong
Compensation is the main remedy in the general protections jurisdiction, and unlike unfair dismissal claims, it is uncapped, and the court may make orders compensating an employee for future economic loss; hurt and humiliation; pain and suffering; and general damages.
In addition, civil penalties can be ordered for breaches of the general protection provisions of the Fair Work Act, with penalties being up to a maximum of $66,600 per breach for corporations and $13,320 per breach for an individual involved in the contravention.
A published Federal Circuit Court decision finding that an Employer has taken adverse action against an employee and therefore breached the general protection provisions may affect an Employer’s brand and reputation.
How we can help you?
We strongly recommend that you speak to one of our experienced Employment Lawyers before dismissing an employee so that the risk of a general protections claim (or any other claim) can be mitigated. We also recommend you speak to us in circumstances where you may intend to take some form of action against an employee and the employee has at some point prior to this made a complaint in relation to their employment.
Remember that an employee can make one of these claims whilst they remain employed.
Our lawyers have a strong history of resolving general protection claims before they get to hearing. We also have an excellent record in defending general protection claims at hearing.
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