Despite a slight drop at the end of 2012, the latest figures released by the Fair Work Commission show that 888 General Protections Claims (including adverse action claims) were made in the first quarter of 2013.
This is a significant increase from the 687 applications made in the fourth quarter of 2012. The previous record for the most claims in a quarter since their introduction on 1 July 2009 was 710 in the second quarter of 2012.
Alistair Salmon, partner in the Workplace Relations and Safety practice at law firm Holding Redlich, put this latest significant rise to the increasing willingness of employees to agitate claims against their employers based on asserted rights. He added that the general protections provisions of the FairWork Act, particularly adverse action, are still being tested in the courts. Importantly, the issue as to whether a workplace right must exist at law or simply through the ability of an employee to raise an internal complaint is not settled. “The adverse action provisions are also being cleverly used in a very broad context including by a union against the Victorian Government over the application of the Victorian Code of Practice for the Building and Construction Industry,” he said.
“There is also an increasing propensity for applicants in adverse action claims to include individuals as named respondents to the proceedings as well as the employer which cannot be done in unfair dismissal claims. The difficulty for employers is that managers are brought directly into the firing line creating an added incentive for employers to resolve such claims without the time and cost of going to hearing. There is also no limit on compensation as is the case for unfair dismissals,” Salmon added.