The Fair Work Act 2009 (Cth) (Act) provides protection to persons in the workplace such as employees, prospective employees, independent contractors and even employers from adverse action being taken against them in the workplace.
The general protection provisions of the Act protect a person from receiving negative treatment within the workplace because that individual has a workplace right, proposes to exercise, or has exercised a workplace right.
Examples of workplace rights include:
The workplace right protections extend to:
In addition to protections concerning workplace rights, the Act also protects persons from:
There are a number of exceptions and defences under the Act even when adverse action is taken because of these protected rights. However, they are often difficult and hard to defend.
Adverse action taken against employees ranges from actual or threatened dismissal, injury in employment, altering the position of the employee to the employee’s prejudice, or discriminating between the employee and other employees of the employer. This can include:
It is unlawful for an employer, or prospective employer, to take adverse action against an individual because the individual exercised a workplace right, or to prevent an individual from exercising a workplace right. For example, issuing a warning to an employee because they raised an inquiry about their pay. However, the laws do not prevent warnings because the employee engaged in misconduct.
Reverse onus and multiple reasons
Further, the Act provides a reverse onus of proof. This means that once an employee makes an allegation that they have been dismissed because they was on personal leave, it is upon the employer to provide evidence that this allegation was not the reason for dismissal, but because the employee was not performing or engaged in misconduct.
Of course, the employer’s position is strengthened if there are supporting documents of previous warnings. If, however the employee was dismissed in part because of performance but also in part because of their absence on account of sick leave, then the conduct is caught by the Act.
While some actions may appear to be lawful such as dismissal or issuing a disciplinary warning, it is the reason behind the adverse action that determines whether it is lawful or unlawful.
For employers, general protection claims are highly significant as they: Are widely open to interpretation;
The burden of proof falls on the employer to prove that the reason for the adverse action was not because of the alleged general protection;
Compensation awarded against an employer for unlawful adverse action are uncapped. Compensation extends to loss of past and future income and compensation for hurt feelings or any assessed psychological injury that may have arisen from the adverse action;
Individual directors and others involved in the conduct can also be held personally liable;
Penalties can be awarded of up to $63,000 against a company and $12,600 against individuals such as directors and others involved in the conduct and paid to the employee;
Legal costs are not normally recoverable, even when the employer successfully defends the claim
Employsure Law is the partner law firm for Australia’s leading workplace relations consultancy company, Employsure. It provides litigation workplace law services to Employsure clients.
Employsure Law understands how the small business sector works and offers business owners high quality, cost-effective, practical legal advice and representation. Business owners can take comfort knowing that they are supported by an expert legal team if they are facing claims or litigation.
In its first year of operation, it was Employment Law Specialist Firm of the Year and its Head of Legal was a finalist for 2019 Workplace Relations Partner of the Year.
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