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How to win a General Protections Claim?

General Protections Claims are on the rise. They are claims made against an employer for taking adverse action, which is any action that puts an employee at a disadvantage, such as a demotion or terminating their employment for exercising workplace rights or for reasons of discrimination.

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 lodge an unfair dismissal application or a general protections claim for the affordable price of $69.60. If the employee has been employed for under the qualifying period of 6 months (or 12 months for a small business employer) they cannot claim under the Unfair Dismissal provisions, but they can still lodge a General Protections claim as there is no minimum employment period for this jurisdiction. The other advantage for those claiming under this jurisdiction is that the penalties are uncapped whereas they are capped at 6 months of wages for an Unfair Dismissal Case.

The first step in handling a general protections claim is responding to it, then you will usually have a conciliation and if you don’t settle at conciliation, the matter will proceed to Federal Circuit Court. In Federal Circuit Court, you must be represented by a lawyer, where the fees can be somewhere between $40,000-$60,000 to simply have representation. If you win, you are out of pocket your legal fees, if you lose, you are out of pocket legal fees and then whatever penalties the Courts decide on top. If the claim is upheld then usually the penalties are more than nominal. So, our theory is if you go to court and win, being that the claim is dismissed, you still lose and the claim is upheld, you lose even harder.

In addition to the above, under this jurisdiction, there is no science to how the case will go when its heard in Court. There is a reverse onus of proof under general protections applications which means the employer is effectively guilty until proven otherwise. The decisions can go either way.

For example, there was case where an employee applied for 2 days of annual leave which was not approved, so the employee said to his manager he would then be sick, went to his GP, obtained a medical certificate and took sick leave for the same days that he applied for his annual leave.

When the employee returned to work, he was summarily dismissed for dishonesty. The matter was heard in the Federal Circuit Court under the General Protections provisions of the Fair Work Act and 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.

When making its decision, the Court looked at the actual reasons that influenced the decision maker. The Court was convinced that the reason for the termination was not because the employee was ill or temporarily absent from work, but for dishonesty as the manager did not believe the employee was ill in the first place.  The application for a General Protections remedy was dismissed. (CFMEU v. Anglo Coal (Dawson Services) Pty Ltd [2015] FCAFC157)

In this case, the employer “won” but would have most likely paid very hefty legal fees as the case was appealed to the Full Court of the Federal Circuit. There are no good outcomes for employers in these cases, because even when you win, you lose. Your best bet to protect yourself from General Protections Claims is to ensure that you always have a valid reason for termination and make that reason clear, remembering the reverse onus of proof being key to these cases.

If you need some guidance on how to deal with difficult employee situations, please give us a call at HR Gurus where we would be happy to assist. It’s a lot cheaper to get help and avoid a general protections claim in the first place, than have to pay penalties, settlements and legal fees.

Written by resident HR Guru Jessy Warn.

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