Increase in General Protections claims at Fair Work Commission
Since a decision last year by the High Court which clarified the approach courts should adopt when determining whether adverse action had be taken against an employee for a prohibited reason the Fair Work Commission (FWC) has seen a rise in the number of application's for a General Protection claim.
While many lament the abuse of the General Protection claim by some applicants due to their inability to qualify for an unfair dismissal, many are now using the claim in a legitimate attempt to be reinstated, reemployed or to seek compensation for being treated adversely by their employer.
What is a General Protection?
General protections are set out under Part 3-1 of the Fair Work Act 2009 and aim to protect workplace rights, freedom of association and to provide protection from workplace discrimination.
Where an employee alleges that they have suffered adverse action (for example termination of employment) for using a workplace right or been discriminated against and has filed a General Protection application to the FWC the onus of proof shifts to the employer to establish that the adverse action did not occur solely, or in part, because of a prohibited reason.
Can a dismissal be both an unfair dismissal and general protection claim?
Often, an employees termination can bring rise to either a claim of Unfair Dismissal or General Protection. However, some employees have tried to use the General Protection provisions as a way to get around the jurisdictional barriers that apply to unfair dismissals (such as the high income threshold)s, or even as an alternate to Unfair Dismissal claims. However, it is critical for an applicant to select the correct forum for their claim as they risk having their claim rejected by the FWC if they chose the wrong legal recourse.
Recent decisions by the courts have reiterated that the FWC must strictly adhere to only hearing matters that are genuine General Protection claims in that forum. In the case of Wolfe v ANZ Banking Group the applicant alleged that adverse action had taken place when he was discriminated against and dismissed because of family responsibilities. However, the court held the view that even though a fair process was not followed and collective bargaining agreement was not complied with the employer's decision to terminate employment had nothing to do with Wolfe's family responsibilities. As a result the reverse onus of proof was discharged and the General Proections claim was dismissed.
Previously, it was thought by many that the reverse onus of proof made it easier for an applicant with no claim to pressure an employer into reluctantly conceding a settlement of the matter. However, employers are increasingly deciding to challenge General Protection claims as they have found that so long as they are confident that the court will accept their evidence that the actions taken had nothing to do with a workplace right of the applicant then the reverse onus of proof will be discharged and the matter dismissed. This notion is supported by the case of Bendigo Regional Institute of Technical and Further Education v Barclay where the court decided that the reverse onus can be satisfied by accepting the evidence from the decision maker within the employer that explains that the adverse action was not taken for a prohibited reason, even if their decision was completely unfair or breached the law. Similarly, in Begley v Austin Health, the court's principle to only uphold a General Protections claim in circumstances where the reason for the adverse action is for a prohibited reason was reiterated where an employee who had been made redundant, and had been treated appallingly for almost 20 years, was found to have not been terminated (treated adversely) for a prohibited reason.
The above cases show that employees must ensure that they have a legitimate and objective claim for a General Protections claim as opposed to using it as merely an alternative to an Unfair Dismissal claim.
While the instances of General Protection claims are on the increase rulings by the court over the past 12 months have clearly illustrated that an employee who has been adversely affected by an employer will not always lead to a successful General Protection claim. Not only do employees need to give consideration to the strength of their claim and whether they should be properly applying for an Unfair Dismissal claim or a General Protections claim but also whether or not the employer will be able to provide a counter argument that establishes that the adverse action occurred for some other reason other than that of a prohibited reason.