Losing your job or facing unfair treatment in the workplace can be stressful and a big interruption to your life and livelihood. But you don’t have to navigate it alone. Australia’s general protections laws exist to ensure that employees are not dismissed or mistreated for unlawful reasons—such as discrimination, exercising workplace rights, or raising concerns about safety or conditions. If you believe you’ve been unfairly let go or subjected to adverse action, understanding your rights is the first step toward taking action, explains Commercial Litigation Senior Associate, Jade Carlson.
2024 saw the highest number of Fair Work claims, according to the Fair Work Commission.
Unprecedented numbers of claimants applied to the independent body to have their case heard for having been unlawfully treated at work or even dismissed all together.
Most people are aware of the term, ‘unfair dismissal’ and this is the first claim an employee will often believe they can make if they feel they have been unreasonably sacked from their job.
According to the Fair Work Commission, unfair dismissal claims increased by more than a third last year to 14,772 claims.
However, it’s important employees understand the differences between an unfair dismissal claim and unlawful termination, and their rights under the ‘general protections’ provisions of the Fair Work Act 2009 (Cth) (Fair Work Act), as both provide protections to an employee but crucially, require diverse demands of them, with ‘general protections’ often being overlooked, which means you could be missing out on bringing a claim for damages.
Recent TV and newspaper reports highlight a notable unlawful termination case brought by journalist, Antoinette Lattouf against the ABC before the Fair Work Commission, now being played out in court, has gripped the country as broadcasting legend and ABC chair at the time, Ita Buttrose, is said to have been involved in Ms. Lattouf’s sacking, alongside four ABC executives.
Ms. Lattouf was allegedly sacked after she reposted a Human Rights Watch social media post about the war in Gaza. She claims she was unlawfully terminated due to her political opinions and due to her race, being of Lebanese, heritage.
How to identify if your employment claim is unfair dismissal or ‘general protections’
The Fair Work Act is commonwealth legislation created to provide protection to employees and promote fairness for both employees and employers. It demands vital stipulations to which a case must adhere before someone can make an unfair dismissal claim.
- Most importantly, an employee must have worked for the employer for at least 12 months, if the employer is a small business that has less than 15 employees, or otherwise six months.
- The claim must be lodged within twenty-one days of the dismissal taking effect.
- The employee must earn less than the high-income threshold (currently $175,000 per year) or have a modern award or enterprise agreement that covers their employment.
To determine whether the dismissal was unfair, the Fair Work Commission will consider the following;
- whether there was a valid reason for the termination.
- whether the employee was notified of that reason and was given an opportunity to respond;
- if the dismissal related to unsatisfactory performance, whether the person had been warned of that reason.
The Fair Work Commission will expect the employer to provide their reasoning and question the behaviour of the employer prior to the dismissal. They will also expect evidence to support any claims from the employee.
Potential claimants should be aware the Fair Work Commission can order only for the employee to be reinstated and to receive financial compensation to a cap of the lesser of 26 weeks wages or half of the amount of the high-income threshold immediately before the dismissal. To learn more about unfair dismissals, click here.
Employees rights to ‘General Protections’
Perhaps less well known in employment law and unfortunately often overlooked, is an employee’s rights to ‘general protections’ in the workplace.
‘General protections’ are also set out in The Fair Work Act and were introduced to protect people from harmful (adverse) action, coercion, undue influence or pressure and misrepresentation.
Employers are prohibited from ‘adversely acting’ against employees due to the following factors;
- The exercise of workplace rights, such as taking leave or making a complaint
- An employee’s age, sex, disability or another discriminatory reason
- An employee being away from work sick or injured.
The Fair Work Commission identifies examples of ‘adverse action’ to mean;
- being sacked or fired (dismissed)
- being demoted
- being overlooked for promotion.
Unlike in unfair dismissal claims, the benefit for employees making a claim under ‘general protections’ is the absence of a minimum required time period in employment and the adverse action does not have to only be dismissal.
Also claimants need only to prove the adverse action took place. I.e. They must only show they were demoted or dismissed, or whatever the adverse action was. The burden to prove the reason behind the ‘adverse action’ is firmly upon the employer.
‘General protections’ cases are increasingly making headway to catch up to the notoriety of ‘unfair dismissals’ in supporting employee rights.
In Canberra, a former employee took WorkSafe ACT to court alleging he was sacked after complaining about regulator’s own workplace culture.
In another high profile case, Priscilla Atkins, the chief executive of the North Australian Aboriginal Justice Agency, successfully sued the organisation for wrongful dismissal, with the Federal Court finding she was unlawfully sacked from her position.
Ms Atkins was suspended, then sacked, after raising complaints of corruption against NAAJA’s chief financial officer, Madhur Evans, with the organisation’s board of directors. Ms. Atkins was offered $1.5million to settle the case by NAAJA after the court upheld her claim that five adverse actions were taken against her. NAAJA was forced to issue a public apology and Ms. Atkins was able to return to her position.
Finally, perhaps the most notorious general protections case to date, involving significant damages is Vivienne Leggett, against Hawkesbury Race Club, her employer at the time. Ms. Leggett was forced to quit her role in marketing and sponsorships due to her manager, Greg Rudolph’s oppressive behaviour.
When Ms. Leggett complained to Mr Rodolph by email about his behaviour, and stating it needed to be resolved, his reply did not address any of Ms Leggett’s concerns. Instead, he solely informed her that he wanted her to discuss her performance at his office with the club’s functions manager the following day.
Ms Leggett subsequently sent a medical certificate to the CEO, stating she was unfit for work due to stress and was then diagnosed with a permanent psychiatric injury, leaving her permanently incapacitated and unable to work for many years. Ms Leggett, won a $2.8million payout due to bullying she suffered from Mr Rudolph.
Perhaps due to high profile cases like these in the news, there is an increasing understanding of the importance and relevance of ‘general protections’ cases as last year, dismissal-related general protection claims rose by 10 per cent to 5,477 claims.
How to make a ‘General Protections’ claim
If you have been unfairly treated at work and believe you have a claim, then it is important to seek legal advice as early as possible.
Time is of the essence as employees need to file an application with the Fair Work Commission within 21 days of the dismissal taking effect.
An experienced employment lawyer can provide advice and prepare the relevant documents to ensure employees lodge their claim on time and protect their rights.
After submitting your claim
After the claim is accepted by the Commission, the employer will have an opportunity to respond and then the matter will be set down for a conference, where the parties will be given an opportunity to resolve the dispute. If the matter is not resolved, a Commission Member will issue a certificate to the parties confirming the matter did not settle, and then the employee will have 14 days to either apply for arbitration or commence proceedings in the Federal Circuit Court and Family Court of Australia.
Financial compensations in general protections cases
Should an employee and employer not agree to a private settlement, the matter can proceed to the Federal Circuit and Family Court, where a Magistrate will hear the case and make a determination.
A court will consider financial compensation that the employee may be entitled to including wages, pain and suffering, hurt and humiliation, as well as order penalties against any wrongdoers, including persons involved in the dismissal. A judge can also order reinstatement of employment, and other orders as the court sees fit.
Attwood Marshall Lawyers – experts in employment law and dispute resolution
Our Commercial Litigation team is here for you to ensure workplace disputes are resolved effectively, providing the best outcome for you.
If you need help or advice please contact our Commercial Litigation Department Manager and Senior Paralegal, Chloe Smith on 07 5536 9777, email csmith@attwoodmarshall.com.au or free call 1800 621 071 any time to find out where you stand.
