Employer responses to commonplace employee requests can
bring provisions into play
21 July 2010
General protections provisions are being widely accessed by
employees, with recent court decisions demonstrating the breadth of
the provisions and the coercive powers available to protect
employees who have exercised an employee right.
The general protections provisions of the Fair Work Act state
that an employer must not take any 'adverse action' against
an employee because the employee has exercised or proposes to
exercise a 'workplace right'.
Claims made under these provisions by employees and unions are
"A 'workplace right' has a very broad meaning that
encompasses everything from union activity right through to an
employee's right to make fairly commonplace enquiries or
complaints with respect to their employment.
These could include salary enquiries, flexible work requests as
well as requests for further information regarding planned
disciplinary action, so it's easy to imagine how widely these
provisions can be applied.
Recent decisions by Fair Work Australia show employer actions
such as informing an employee their role may be made redundant,
instituting a disciplinary enquiry, investigating complaints
against the employee or issuing a 'show cause' letter, may
constitute adverse actions under the Act.
A recent case, Jones v Queensland Tertiary Admissions Centre
(29 April 2010), illustrates how employees may be able to
effectively prevent or delay an employer's legitimate
disciplinary action, despite there being merely an allegation that
the employer has acted in breach of the general protection
Prior to a hearing by Fair Work Australia, the employee applied
directly to the Federal Court for an interlocutory injunction,
asserting a breach of the general protection provisions. As a
result the court granted an interim injunction to prevent any
further action against Ms Jones prior to a final hearing of the
matter, though later all claims made by the employee were rejected
by the court.
Another recent case, Automotive, Food, Metals, Engineering,
Printing and Kindred Industries Union v Phillips Engineering Aus
(15 June 2010), demonstrates the power of the court not only
to stop but also to reverse a termination of employment prior to a
full hearing, where it appears a breach of the general protections
provision has occurred.
In this case the court determined the evidence strongly
supported a finding that the employer had terminated the
worker's employment because of union activities, and that its
statement that there was not enough work for the employee was made
to mask its real intent.
Businesses should not underestimate the wide-ranging reach of
these provisions or the powers of the court or Fair Work Australia
to act where they feel adverse action has occurred. If an employee
can demonstrate they have exercised an employment right as well as
show some kind of adverse action taken by their employer as a
result, then the onus rests with the employer to prove otherwise.
Employers need to be able to document and prove that the adverse
action was justified and unrelated to the employee exercising their
Practical advice for business:
Employers should take the following steps:
Be trained in relation to what the general protections
Make sure the reason for dismissal, or other adverse action is
not prohibited under the Act's general protections
Managers should undergo comprehensive performance management
Ensure that the lawful reason for dismissal is clearly
communicated to the employee
Be trained to make records of all employee concerns, requests
and responses and ensure that the supporting documentation is kept
Establish a system to flag high risk issues, so that grievances
can be dealt with internally rather than employees making claims to
external tribunals and courts where possible
Have appropriate processes to capture 'corporate
memory' because general protection claims can occur up to sixty
days after the event.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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