By Calum Woods and Lindsay Carroll, NRA Legal
Late last year, the media introduced us to Angela Williamson, an employee of Cricket Australia allegedly sacked after she posted on Twitter criticising the Tasmanian Government’s policy on abortion laws.
Ms Williamson subsequently filed an application with the Fair Work Commission, arguing that CA had breached the general protections provisions in the Fair Work Act 2009 (Cth) (Fair Work Act). The matter was settled outside of court in September.
In more recent memory, Michelle Guthrie’s departure from the ABC and subsequent general protections application was almost universally referred to as an “unfair dismissal.”
Despite the apparent similarities between unfair dismissal and general protections, the two are decidedly different.
It is important for employers to understand the distinction so that they can appropriately manage the risks associated with termination in their business, and avoid unnecessary costs associated with defending employee claims in the Fair Work Commission.
What are the general protections?
Under the Fair Work Act, the general protections are, effectively, a list of protected reasons that cannot provide grounds for an employer to act to the detriment an employee, prospective employee, or even an independent contractor.
Any type of detrimental act is referred to as an “adverse action,” hence why general protections applications are sometimes referred to as adverse action claims.
Adverse action does not only include dismissal, but also such things as reducing an employee’s rostered hours, refusing to hire someone, or disproportionately allocating an employee undesirable tasks.
For this reason, a general protections application can be made while an employee is still employed, or in some cases even before – albeit these types of applications are dealt with using a different process.
However, on its own an adverse action will not be enough to substantiate that a breach of the general protections provisions has occurred. The act itself must have been taken because of a protection reason.
What reasons are protected?
There are four different types of protected reasons:
- Workplace rights;
- Industrial activities;
- Discrimination; and
- Temporary absences for illness or injury.
Workplace rights are considered one of the most essential protections available to employees. The two most common workplace rights are:
- the right to make a complaint or inquiry about employment; and
- the right to file applications to a court or the Fair Work Commission.
For instance, if an employee suspects that they are being underpaid and makes a complaint to the Fair Work Ombudsman, the employer cannot penalise (or take “adverse action” against) the employee for making the complaint.
At law, the threshold for what is considered to be a complaint or inquiry is very low, meaning that a complaint or inquiry does not have to be given formally or in accordance with a grievance policy or procedure, and does not have to be in writing. For example, a complaint or inquiry in relation to a person’s employment could include a complaint about safety made verbally to a colleague during a shift.
Another common workplace right arises where an employee makes an application to the Fair Work Commission, such as an anti-bullying application or even a different general protections application.
While this may seem obvious, there may many hidden risks associated with this protection. For example, if an employee (Employee A) files an anti-bullying application against another employee (Employee B), an employer may decide to alter Employee A’s roster so that they do not work at the same time as Employee B.
This act, in and of itself, may be in breach of the general protections provisions.
Other workplace rights include such things as making a request for flexible working arrangements, bargaining for an enterprise agreement, or accessing a leave entitlement (including personal/carer’s leave or parental leave).
This protection applies predominately to the lawful activities of unions and their members. An employer cannot take adverse action against an employee for being a member of a union, or refusing to join a union.
There is some intersection with the protection against discrimination in the Fair Work Act, and those available under anti-discrimination legislation.
Under the Fair Work Act, a breach of the general protections provisions will occur where an employer takes adverse action against an employee for any of the following reasons:
- sexual orientation;
- physical or mental disability;
- marital status;
- family or carer’s responsibilities;
- political opinion;
- national extraction; or
- social origin.
Unlike other protections, there are a number of exceptions that make it not unlawful to discriminate on the basis of one of these attributes
An example of an exception may include where an employer has a genuine operational need for a position to be filled by a person of a particular sex for privacy reasons. There is however, a very high threshold to satisfying this exception.
To complicate the matter further, subject to individual circumstances, this exception may not necessarily apply under State or Territory anti-discrimination laws.
Temporary absences for illness or injury
The final type of protection is an entitlement to be absent from the workplace for reasons of temporary illness or injury, for a period of up to three months.
Importantly, this protection applies in addition to any entitlement to access personal/carer’s leave, which is also protected as a workplace right.
What this means is that if an employee has more than three months accrued sick leave, some form of protection will apply for the entire duration of the sick leave.
Alternatively, where the employee has less than three months sick leave, but for instance provides a medical certificate to cover a longer period, this protection applies for up to three months. In effect, this creates an informal entitlement to unpaid sick leave.
Furthermore, once an employee has exhausted the three month protection, this does not automatically provide the employer with grounds to dismiss the employee – as this may trigger the protection against discrimination on the basis of physical disability, or even give rise to an unfair dismissal.
Are general protections claims treated differently by the Fair Work Commission?
Unlike unfair dismissal, for the purposes of filing a general protections application it is not relevant how long an employee has been with the business, whether the employee is engaged on a casual basis, or even whether there were other genuine reasons for the dismissal. If one of the reasons for a dismissal related to a protection, this may give rise to a breach of the general protections provisions.
The Fair Work Commission has limited powers to deal with general protections applications, and employers experienced in dealing with unfair dismissal applications will find that the processes do not share many similarities.
There are a number of intricacies associated with general protections claims. For instance, it is entirely optional for employers to participate in a conference before the Fair Work Commission where there has been no dismissal, however where a dismissal has occurred, the process is compulsory.
The Fair Work Commission has no power to order compensation or reinstatement, even when the process is compulsory, unless both parties agree for the Commission to arbitrate the dispute. Where a general protections application cannot be resolved before the Fair Work Commission, only the Federal Court and Federal Circuit Court have the power to decide cases. This means that complex rules of evidence and procedure will apply, and companies must be represented by a lawyer unless they have the court’s permission to represent themselves.
In examining the procedural requirements alone, there are a number of factors that must be taken into account when responding to an application. The complex interaction between different protections (and exceptions) can be difficult to navigate for employers, notwithstanding the risks posed by unfair dismissal.
If you have received a Fair Work Commission claim, or need advice in managing a dismissal in your business, contact NRA’s team of workplace relations advisors on 1800 RETAIL (738 245).