The Fair Work Act has provisions dealing with unfair dismissals and what are known as ‘general protections’.

A breach of a general protection occurs when an employee is treated less favourably or dismissed because they have claimed or exercised a workplace right such as:

• Questioning or claiming an employment entitlement – such as payment for overtime; payment of an allowance; payment for personal leave etc.
• Lodging a complaint about a Workplace Health and Safety issue
• Making a complaint or enquiry in relation to their employment
• Acting as a union representative, being a union member or taking part in a strike

General Protections also include protection from discrimination on the basis of age, sex, marital status, race, sexual preference, religion, political opinion, family or carer’s responsibilities, pregnancy and temporary absence due to illness or injury. (A ‘temporary absence’ is anything less than three months of unpaid sick leave in a 12 month period.)
An employee who feels that adverse action – including but not restricted to dismissal – has been taken against him/her based on one of the grounds listed above, has 21 days in which to lodge an application with the Fair Work Commission.

Generally, such an application is dealt with by an initial conference involving the parties before a commissioner/mediator try to resolve the issue without it going on to a formal court hearing. At such a conference, the onus is on the employer to show that the dismissal or alleged adverse action was not due to the employee claiming cover of one of the listed general protections.

Employees and their advisors are becoming increasingly adept at using the general protections of the Fair Work legislation to get around the normal time limitation on an unfair dismissal claim. Normally, an employee in a firm having less than 15 employees is not protected by the unfair dismissal provisions in their first 12 months of employment, and, in a firm of 15 or more, for the first six months. By alleging a breach of one of the general protections, an employee can make the claim at any point in their employment – including while on probation.

Anytime you have a situation where one of the general protections issues has arisen with an employee, at, or around the time you are considering dismissal, you need to be very sure you carefully document all performance issues you intend to use as justification for the dismissal. This will assist in showing that reason for dismissal was not based on the employee exercising a general protections right.

For more information seek guidance from your professional advisor or contact MTA Global – email info@aada.asn.au to register and access AADA Industrial Relations and Workplace Health and Safety related services at a special member rate.

Ted Kowalski
Contributor