How to avoid a General Protections claim from an employee

Introduction

A Protected Attribute can include a wide number of attributes. Generally speaking, a Protected Attribute will include an employee entitlement to any benefit provided by a Modern Award, Enterprise Agreement, Contract of Employment or the Fair Work Act 2009 (Cth). For example:

• An entitlement to annual or long service leave
• Temporary absence from work because of illness or injury
• A right to make a complaint or inquiry in relation to employment, say, by making a bullying complaint or an OH&S complaint
• Making a request for flexible working arrangements
• Lodging a claim or complaint with the Fair Work Commission.

An employee also has a number of other personal attributes that constitute Protected Attributes, such as an employee's race, sex, sexual orientation, age, marital status, political opinions and religion. Accordingly, no decisions about employment can be made with reference to any of these attributes.

What is Adverse Action?

Broadly speaking, adverse action is any action that reduces, injures or harms an employee's employment. For example, adverse action can include:

• Dismissing or demoting an employee
• Taking disciplinary action, such as suspending an employee or placing them on a Performance Improvement Plan
• Treating an employee less favourably than you would otherwise treat your employees
• Refusing to employ a prospective employee.

When is a General Protection law breached?

As an employer, you are, of course, entitled to make changes to your workplace that may have adverse repercussions on an employee's employment.

However, a General Protections breach may occur if such adverse action is taken because of an employee's exercise, or threatened exercise, of a Protected Attribute.

For example:

• Dismissing or demoting an employee because they are engaging in lawful industrial activity or are on annual leave
• Placing an employee on a Performance Improvement Plan because they made a bullying complaint
• Not employing a prospective employee because of their political opinions or religion.

Remember, a General Protections breach can still occur where the exercise or threatened exercise of a Protected Attribute was one of a number of reasons for the employer taking adverse action against an employee.

Other Risk Factors to Consider

Unlike an unfair dismissal claim (in which compensation is limited to a maximum figure equal to six months of an employee's annual salary), compensation payable as a result of a General Protections breach is uncapped. Furthermore, such compensation may also include a component for the hurt and humiliation suffered by the employee. Accordingly, the amount of compensation could be very significant indeed.

In addition, and as opposed to unfair dismissal claims (where the standard onus of proof applies), a General Protections claim implements a reverse onus of proof.

In practice, this means that, once an employee alleges a General Protections breach, the employer has the burden of proving that the General Protections breach did not occur. In other words, the Fair Work Commission will presume that a General Protections breach occurred unless the employer can prove otherwise.

What can I do to avoid a General Protections Claim?

Be consistent in your approach with employees! This cannot be overstated. Key to limiting risk is ensuring you comply with company policies and procedures when dealing with employee complaints.

Furthermore, when contemplating taking some sort of adverse action against an employee, understand exactly why you are taking such action. If you find yourself taking into consideration someone's race or religion, re-evaluate your motive. Make sure your reasons for taking such action are clear, valid and properly recorded. Applying a careful, well considered process over time is so much better and safer than "shooting from the hip."

How can Sharrock Pitman Legal help me?

Finally, always seek legal advice prior to dismissing, demoting or suspending an employee. Our job as lawyers is to look out for these additional risk factors and ensure you do not inadvertently get yourself into trouble. You can save yourself a lot of expense, time and trouble in doing so. Our advice and assistance will always be practical and provide you with options as to the safest possible strategy moving forward. Please contact us on 1300 205 506 or by email at sp@sharrockpitman.com.au.

The information contained in this article is intended to be of a general nature only and should not be relied upon as legal advice. Any legal matters should be discussed specifically with one of our lawyers.

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