What is a general protections claim and when can you bring one?
The general protections provisions are part of the Fair Work Act, and aim to protect employees’ rights and prevent action being taken against them because the employee has a particular attribute, or have exercised a right that is open to them. Essentially, general protections claims are available to employees where their employer (or prospective employer) has taken some action against them, for an unlawful reason.
Claims that involve discrimination of some form are often best expressed or brought as general protections claims, but they also cover scenarios where employees were terminated because they asked to work flexibly, or take leave.
There are two types of general protections claim, and they are:
1. General protections dismissal applications
Employees may be eligible to bring this kind of claim if their employment was terminated at the initiative of their employer, or where the employer did something that forced the employee to resign.
2. General protections non-dismissal applications
These cases can be brought when an employer takes ‘adverse action’ against you as an employee (or potential employee) because they have a workplace right, have exercised a workplace right, or have proposed to exercise that workplace right.
What counts as ‘adverse action’?
- Dismissal;
- Denial of legal entitlements;
- A disadvantageous change of job;
- Different treatment to others;
- Not hiring someone; and/or
- Different and unfair terms and conditions (compared to other employees).
The reason for your termination/resignation/adverse action taken against you must be because of your:
- Race;
- Colour;
- Sex;
- Sexual orientation;
- Age;
- Mental or physical disability;
- Marital status;
- Family or carers responsibilities;
- Pregnancy;
- Religion;
- Political opinion;
- National extraction;
- Social origin;
- Because you were temporarily absent from work because you were sick or injured;
- Because you joined or did not join a trade union or participated in industrial activities; or
- Because you exercised or proposed to exercise a workplace right.
Who are you able to make a general protections claim against?
- Your employer or prospective employer;
- A person who has entered into or who has proposed to enter into a contract for services with you as an independent contractor;
- An industrial association – or an officer or member of an industrial association;
- A constitutional corporation;
- The commonwealth (federal government and its departments);
- A commonwealth authority; or
- An organisation.
How long do you have to apply? (Hint: if there has been a dismissal – not long!)
An application to deal with a general protections dismissal dispute must be lodged by the employee (i.e. you!) within 21 days after the day the dismissal took effect.
If your claim does not involve a dismissal, it can be lodged up to six years from the day the alleged contravention occurred.
How will your claim be dealt with?
If it is a general protection dismissal dispute:
Firstly the Fair Work Commission will facilitate a conciliation conference between yourself and your employer. If an acceptable outcome cannot be reached, and you do not want the Commission to determine the matter, you can commence an action in the Federal Court or Federal Circuit Court (but only after you have been through all of the Fair Work Commission General Protections processes.)
If it is a general protections non-dismissal dispute:
These disputes do not require you to have a conference with Fair Work Commission – you may go straight to court. However if both parties agree to participate in a conference, the Commission will convene a private conference to deal with the matter.
If you are not eligible to make a general protections application, you may be able to make an unlawful termination application.
But that is a whole other topic…
If you are in suffering unfair conditions at work, or have been dismissed for one of the reasons above, speak to us at Sinclair + May for some specific legal guidance as to the best way to move forwards in your situation.
This is general advice only. Liability limited by a scheme approved under Professional Standards Legislation.
Published Nov 21, 2018
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