Navigating the complexities of a workplace dispute can be daunting and it is important that you are aware of your rights when you are in dispute with your employer. Often, an employee might give in to their employer in order to keep their job. They may not use rights available to them to avoid difficult negotiations, for fear of victimisation, or because they may simply not know their options.
General protections do not only protect against dismissal If you believe your employer has taken unlawful adverse action against you and you still have your job, but it is also crucial that you understand your options under the general protections provisions of the Fair Work Act 2009.
This article aims to provide you with a clear and informative overview of general protections claims (without dismissal) and empower you to make informed decisions regarding your employment rights. It may also help as useful background when seeking advice.
What are General Protections?
General protections are fundamental rights enshrined in the Fair Work Act which safeguard employees from a range of unfair and discriminatory practices by their employers. Put simply, these protections encompass various aspects of employment, including:
- workplace rights: your right to entitlements under awards, agreements, and legislation, as well as your right to participate in industrial activities, make inquiries, and raise concerns without fear of retaliation.
- freedom from discrimination: you are protected against discrimination based on various factors such as your race, gender, age, religion, sexual orientation, political opinion, and disability.
- freedom from coercion and undue influence: your employer cannot pressure or influence you into making decisions against your interests or legal rights.
- freedom from misrepresentation: you have the right to accurate and honest information about your employment, including wages, conditions, and benefits.
What is a General Protections Claim (Without Dismissal)?
A general protections claim (without dismissal) arises when you believe your employer has taken "adverse action" against you, but you have not been dismissed. "Adverse action" can take various forms including:
- demoting or transferring you to a less favourable position
- reducing your pay or altering your working hours
- denying you training or promotion opportunities
- issuing disciplinary action without proper justification
- creating a hostile or intimidating work environment
You may have a valid claim if your employer has subjected you to any of these actions, but it is important that you obtain advice as to whether your claim is valid.
The strength of any claim will depend on several factors, including the connection between the adverse action and the workplace right or freedom in issue.
Separate action may be available to you if you have been subjected to any adverse action causing you to lose your job or forcing you to resign from your position.
Potential Outcomes:
If your general protections claim (without dismissal) is successful, the Fair Work Commission can order various remedies, including:
- reversing the adverse action
- compensating you for any financial losses
- enforcing compliance with your legal rights
- issuing orders prohibiting your employer from further contraventions
Important Considerations in General Protections Claims
From the date that any adverse action occurred, you have six years to lodge a claim.
Before lodging your claim, you should make sure not to delete any documentary evidence supporting your claim such as emails, text messages or correspondence received from your employer. It is also important that you obtain legal representation, as general protections claims can be complicated.
Employment disputes that arise while you are still employed can be particularly difficult to handle on your own as you head back into work each day. Your employer can be is a superior bargaining position simply by the fact you want to keep your job. It is also important to ensure that your performance and conduct at work are not affected by the task of conducting your claim, to avoid providing separate, valid grounds for the employer to take reasonable performance or disciplinary action against you. Engaging lawyers will act as a buffer between you and your employer, ensure that you understand the merits of your claim, you are aware of the process and are represented effectively in your claim.
How an employment lawyer can assist.
Understanding your rights and taking action when they are violated is crucial to maintaining a fair and respectful work environment. As a leading firm dealing with complex employment law disputes, PCL Lawyers is committed to assisting individuals like you in navigating the complexities of general protections claims (without dismissal).
We offer comprehensive legal advice, representation, and support throughout the entire dispute. Importantly, we can assist with confidential advice and assistance 'behind the scenes' or we can represent you by being the point of contact and handling negotiations for you. Our flexible and personalised approach sets us apart from many service providers who use a very standardised approach. It is also important to use an experienced employment lawyer, rather than an unregulated 'employee advocate', 'consultant' or 'representative'.
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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