Employees and their lawyers are increasingly taking aim at employers using Fair Work general protections provisions, with HR getting caught out by ‘furphies’.
Philip Brewin, partner at Nevett Ford, told HC Online there was “no doubt” increased awareness of general protections was increasing claim numbers.
Partner John Tuck at Corrs Chambers Westgarth and Harmers Workplace Lawyers Michael Harmer agree general protection claims are on the rise.
“There seems to be quite an active embrace of general protections provisions by employees – we are seeing them heavily used now,” Tuck said.
Brewin said more generous remedies available to employees under these provisions than unfair dismissal claims made them a strong tool for lawyers.
“You [employees] can [under the provisions] be entitled to compensation, you can get an award in relation to lost wages, you can achieve reinstatement and also penalties against an employer or even a prospective employer,” Brewin said.
One advantage for employees in a general protection claim is there is a reverse onus under which employers must prove that an ‘adverse action’ was not for a prohibited reason, such as a pregnancy, gender, or pursuing workplace rights.
“An ‘adverse action’ covers a reduction in the benefits and advantages that an employee receives, so one of the main types is termination,” Brewin said.
“So you need to have good policies and procedures in place to show that the action – albeit adverse – was not taken for a prohibited reason.”
Brewin said employers need to act consistently for all their employees, and needed to be able to prove this though documenting their actions.
“Otherwise the person who had the adverse action taken against them might say it was because they complained against bullying, or an occupational health and safety matter or because they were exercising their right to be a member of a union, for example,” he said.
As a result, Brewin said employers should still explain their reasons in a letter of termination, even if they are under the 6-month minimum period that is required under law for an employee to bring an unfair dismissal claim.
Brewin said there was ‘room for greater education’ among HR departments and managers, particularly when it came to understanding the distinctions between adverse actions, general protections and unfair dismissals.
“An adverse action is not unlawful unless it has been taken for a prohibited reason,” he said. “There are some furphies out there, which can quickly be dispelled by getting competent advice from someone across this area.”
Brewin said HR played a key role in ensuring compliance with Fair Work.
“Most organisations refer issues of misconduct and poor performance to HR managers for advice and guidance,” he said. “I always say preventative law is like preventative medicine; it’s important to get competent advice before an irreversible decision is made so that you can establish an adverse action was taken for the right reasons.”
General protections provisions do not have a minimum time period that qualifies employees to bring a claim, even if an ‘adverse action’ occurs on the first day. However, unfair dismissals claims are a “different creature”, according to Brewin, requiring a dismissal that is harsh, unjust and unreasonable after 6 months of employment, or 12 months for small businesses.
“There is a tight timeframe of 21 days to bring a claim under the general protection provisions if an employee is terminated, so they need to move quickly; lawyers not surprisingly are moving fast to protect client rights.”