The General Protections provisions of the Fair Work Act 2009 state that an employer must not take any adverse action against an employee (or prospective employee) because of his or her race, colour, sex, sexual preference, age, physical or mental disability, marital status, family or carer's responsibilities, pregnancy, religion, political opinion, national extraction or social origin.
The general protections legislation is broad in nature, as such, has the potential to apply to many workplace decisions and activities. A recent case demonstrates that if a Court is satisfied the general protections legislation has been breached, it may make any order it considers appropriate.
In the case of Wilkie v National Storage Operations Pty Ltd [2013] FCCA 1056 (9 August 2013) a storage centre manager was recently awarded $32,130 in compensation, after a finding by The Federal Circuit Court that her employer took unlawful adverse action against her.
The Court found that the employer had taken adverse action against the employee in three instances being;
- the employer issued her with a warning letter for leaving early to pick up her son;
- the employer demoted and transferred her employment to a new centre; and
- her ultimate dismissal.
The Court found that the company breached s340 and s351 of the Fair Work Act, as the employee was exercising a workplace right to take personal/carer's leave or unpaid carer's leave due to the "unexpected emergency" relating to her son.
The Court also found that the company's decision to transfer her employment and to demote her status from Manager to Assistant Manager, was partly motivated by her use of personal leave due to medical reasons and/or family responsibilities.
The company's conduct consitutued a breach of the employee's contract which left the former employee with no option other than to accept the breach of contract or resign.
This decision, along with many recent decisions, demonstrates that an employer should take into account their obligations to employees in their decision making process. An employer should carefully consider the validity of the grounds they are relying upon to implement any changes to an employee's position, and be able to explain the lawful reasons for the organisation's conduct. It is essential that employers understand how these types of claims can arise and how best to mitigate the risk of an action against them.
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.