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
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
 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
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
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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