General Protections 

General protections are a series of protections that are provided for in the Fair Work Act 2009 (Cth) that aim to:

  • protect workplace rights;
  • protect against coercion, intimidation and misrepresentation;
  • protect against sham contracting;
  • protect freedom of association;
  • protect anyone from discrimination in the workplace; and
  • provide effective relief for anyone who is discriminated against, victimized or otherwise treated unfairly at work.

These laws apply to:

  • employees and prospective employees;
  • employers and prospective employers;
  • independent contractors and prospective independent contractors;
  • a person who has entered into or who has proposed to enter into a contract for services with an independent contractor; and
  • an industrial association, including an officer or member of an industrial association.

In order to be eligible for a general protections claim, an adverse action must have occurred. Adverse actions include (but are not limited to):

  • dismissing the employee;
  • not giving an employee their legal entitlements;
  • injuring the employee in his or her employment;
  • altering the employee’s the position to the employee’s detriment; or\
  • treating a person differently than others;
  • not hiring a prospective employee;
  • offering an employee or prospective employee different (and unfair) terms and conditions as compared to other employees; and
  • discriminated between the employee and other employees of the employer.

General Protections are civil remedy provisions meaning the court can award pecuniary penalties, damages for hurt, distress and humiliation and/or compensation for loss (including future economic loss). Unlike an unfair dismissal claim, the compensation that can be awarded as a result of a general protections claim is not capped.

Unfair Dismissals

Employers need to tread carefully when dismissing employees as they may expose themselves to an unfair dismissal application. A person will be deemed to be dismissed from their employment when:

  • their employment has been terminated at the initiative of the employer; or
  • they have resigned their employment, however the resignation was forced by something the employer did.

Pursuant to the Fair Work Act 2009 (Cth), a person will have been unfairly dismissed if the dismissal:

  • was harsh, unjust or unreasonable;
  • was not consistent with the Small Business Fair Dismissal Code (in the case of small business employers); and
  • was not a case of genuine redundancy.

Unfair dismissal applications are made to the Fair Work Commission and may result in either reinstatement or compensation. The maximum compensation that may be awarded as a result of an unfair dismissal application is 26 weeks pay.

Our experienced employment law team at CTI Lawyers can assist you with either making or defending general protection or unfair dismissal applications. Strict time limits apply to make an application or to respond to an application so please ensure that you contact us immediately. 

NEGOTIATING ENTERPRISE AGREEMENTS GUIDE

FREE Guide to Negotiating Enterprise Agreements

Loading...