DLA Piper's Rick Catanzariti and Anthony Runia reflect on how employers can avoid general protection claims.
Since the introduction of the Fair Work Act 2009 (Cth), the number of general protections claims has steadily increased every year.
The majority of these claims are brought by employees (and sometimes independent contractors) following dismissal. In our experience, many of these claims rely on an employee asserting that he or she exercised a workplace right by making a 'complaint or inquiry' prior to his or her dismissal.
In its recent draft report in relation to Australia's workplace relations framework, the Productivity Commission recognised that the uncertainty surrounding the meaning of 'complaint or inquiry' in the general protections provisions allows workers to pursue baseless and vexatious claims. It recommended a number of changes to address this problem, but it remains to be seen whether they will be adopted by the Federal Government or passed by Parliament.
Uncertainty for employers
Under the general protections provisions, a person will exercise a workplace right if he or she makes a "complaint or inquiry". More so than any other part of the general protections provisions, this workplace right has created uncertainty for employers.
Our employer clients frequently experience general protections claims based on alleged complaints. Further, these claims are commonly used by workers to challenge their dismissal in circumstances where they cannot bring an unfair dismissal claim, for example:
- Employees who have been terminated during their probationary period
- Employees who earn more than the high income threshold, and
- Independent contractors who are aggrieved that their services have been discontinued.
In our view, this reflects a growing understanding among workers (and their representatives) that general protections claims based on complaints are not difficult to make.
What can employers do?
There are a number of steps employers can take to help them successfully defend (and potentially limit the risk of facing) general protections claims:
1. Always ensure that any 'complaints or inquiries' are properly addressed in accordance with any workplace policy or usual way of dealing with such issues.
2. When a decision is made that could amount to adverse action against an employee, always be clear about the lawful reason for the decision. The stronger the lawful reason for the decision, the better the employer's defence will be to a claim that the decision was motivated by a 'complaint or inquiry'.
3. Ensure that any internal documentation relating to the adverse action (e.g. emails to or from the final decision maker or minutes of meetings) clearly sets out the reason for the adverse action. A lack of adequate evidence supporting the lawful reason will count against the employer.
4. Communicate the lawful basis for a dismissal to the employee (or contractor) both verbally and in writing, even if the individual is not covered by unfair dismissal laws. Not providing a reason may create an adverse inference against the employer.
About the authors
Rick Catanzariti is a partner, and Anthony Runia is a solicitor, at DLA Piper, a law firm operating in more than 30 countries.
This topic will be covered in detail at the Employment Law for HR Managers Masterclass, running in cities around Australia this November. For more information or to register, click here