The recent predictions about the use of the general
protections provisions under the Fair Work Act have come true. The
Fair Work Australia Annual Report for 2010-11 indicated that the
use of the general protections provisions had increased by about
50-60% in that year and, anecdotally, we're seeing a number of
these sorts of claims being brought.
Well it's fair to say that the recent predictions about the
use of the general protections provisions under the Fair Work
Act have come true. The Fair Work Australia Annual Report for
2010-2011 indicated that the use of the general protections
provisions had increased by about 50-60% in that year and
anecdotally we're seeing a number of these sorts of claims
One of the interesting things is the number of claims being
brought by senior executives, such as the claims against Virgin
Australia. We saw one the other day being brought against Optus, of
senior executives bringing claims for bullying, harassment and
characterising them as general protections claims.
So why would an employee bring a general protections claim?
Particularly over an unfair dismissal claim, which is the usual
form for challenging dismissals and terminations. Firstly we've
not just dealing with dismissals here, so you can use a general
protections claim to challenge a whole range of management action,
including disciplinary action or investigations. There's a
relatively low success rate for unfair dismissal claims and
we're not seeing that carried through with general protections
claims. There's a reverse onus of proof quite significantly so
employers in this area once certain things are established, will
actually be deemed to be guilty until they prove themselves
innocent. And managers can actually be personally sued under these
provisions, which is a significant area of concern.
The other important thing to note with general protections
claims is whereas unfair dismissal provisions deal with examining
whether a dismissal is actually fair, a general protection claim
deals with what is the motivation of the manager making the
decisions – so deciding to make someone redundant or
deciding to make a significant business decision. And that's
where HR practitioners and lawyers can really play a role in early
intervention in testing out the reasoning behind some of the
significant employment decisions which managers are making, to make
sure that they are not motivated by a prohibited reason. It puts
more emphasis that there should be significant planning which goes
into making management decisions which have an impact on employees
and involve human resource practitioners and also their legal
counsel in that planning to actually sanity check some of their
decisions, to ensure that there's no suggestion that
they're motivated by a prohibited reason under these sorts of
It's all about the motivation of the manager making a
decision then they'll be witness number one in general
protections proceedings and companies really have to consider who
the decision maker is because it may be that they do not want their
senior managers involved in these types of claims.
Because of the prominence of these sorts of provisions and the
way that they're being used it's really not surprising that
we've got a significant case before the High Court at the
moment involving general protections provisions and this particular
area has been the focus of significant comment in the current
review of the Fair Work Act which is occurring.
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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Long experience representing many of Australia's leading employers has taught us that in employment litigation the identity of an employee's representative is a major factor in how employee litigation runs.
Australian employees receive certain entitlements (such as annual leave and superannuation) where contractors do not.
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