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What is an Adverse Action/General Protections claim?
Part 3-1 of the Fair Work Act 2009 provides for various protections for employees from adverse action by their employer. The objects of the General Protections provisions are to protect the workplace rights of employees, to provide protection from workplace discrimination and to provide effective relief for employees who have been victimised or adversely affected by their employer for exercising workplace rights.
Section 340 of the Act provides for the most basic protection whereby an employer is prohibited from dismissing or undertaking any other type of adverse action because the employee has a workplace right or exercised a workplace right.
What is Adverse Action?
What is adverse action depends on the relationship between the relevant persons involved. For instance, adverse action is taken by an employer against an employee, if the employer:
- Dismisses the employee;
- Injures the employee in his or her employment;
- Alters the position of the employee to the employee’s prejudice; or
- Discriminates between the employee and other employees of the employer.
Adverse action can also be taken by a prospective employer against a prospective employee by refusing to employ the prospective employee.
Interestingly, we say adverse action can also occur in circumstances where a principal contractor refuses to make use of or agree to make use of the services of an employee employed by a labour hire employer. This means that even as a labour hire employee you have various protections against adverse action from the principal contractor that engages the employer.
Exercising Workplace Rights
A person generally has a workplace right if the person is entitled to the benefit of, or has a role or responsibility under, a workplace law, workplace instrument or order made by an industrial body. Examples of these benefits, roles and responsibilities include:
- An employee’s right to a safe workplace;
- An employee’s right to be paid minimum award wages including overtime and penalty rates and to be paid in full;
- An employee’s right to be absent from work during parental leave and other authorised periods of lawful absences;
- An employee’s right to workers compensation.
The general protections provisions are also quite broad and include sections which prohibit coercion, undue influence or pressure, misrepresentations, discrimination of protected attributes (please see our discrimination and human rights page), protections for temporary absence from work and sham contracting arrangements (please see our sham contracting page).
How can Connect Legal help you in lodging an Adverse Action/General Protections claim, safeguard your workplace rights and what outcomes may you expect?
General Protections claims are very serious matters and strike at the heart of the employment relationship and at Connect Legal we are committed to counter the overwhelming power and resources which employers readily exercise over vulnerable employees.
If you want to seek relief against an employer to enforce your workplace rights, then Connect Legal can assist in lodging a general protections application at the Fair Work Commission.
If your matter does not resolve in the conciliation process at the Fair Work Commission then the application can precede to either the Federal Circuit Court or the Federal Court for formal determination by a presiding judge or justice.
The range of relief that the court can order is extremely broad and usually involves
- damages for economic loss
- interest on your economic losses
- damages for noneconomic loss, such as for the hurt, humiliation and distress caused by the adverse action
- pecuniary penalties which are usually levied against your former employer for breaches of civil remedy provisions, such as the general protections provisions
- declarations which are formal statements made by the court to declare that your workplace rights have been breached
- reinstatement or redeployment of your previous employment position
- a range of other orders
Each application is unique and it is important to first speak to a qualified legal representative to ascertain the strength, weaknesses and risks associated with litigation of your application in the court system.
Under statute, employees have significant workplace rights under state based Occupational Health and Safety laws which provide for very serious protections and prohibitions of workplace bullying, harassment and general unsafe work practices. In instances when you have raised significant work, health and safety in relation to the work you performed, the workplace environment, the equipment you utilised and/or have raised serious bullying issues either verbally or in written form, please contact Connect Legal to discuss your adverse action claim.
In comparison to lodging an unfair dismissal claim where you have to be employed the minimum of six months, in an adverse action claim your length of service is immaterial. Thereby if you are employed only for five weeks and have exercised your workplace rights we can lodge an adverse action - general protections claim.
Employers have very strict legal and regulatory obligations and responsibilities under the Fair Work Act 2009, the applicable industry awards and superannuation legislation to pay employees their minimum award entitlements (hourly rate, overtime, travel allowance, superannuation, commissions, annual leave). In instances when you have exercised your workplace rights, asked questions about your hourly rate of pay, overtime, your payslips and other award matters and have been dismissed, please contact Connect Legal to discuss your adverse action claim.
Employers have strict obligations under the Consumer and Corporations not to mislead customers and to conduct their company affairs in good faith. Employee workplace rights are very broad and it is essential we articulate them when lodging an adverse action claim.
Our recommendation will be to consider lodging a General Protection Claim because it seems you were dismissed because of a workplace right, namely your right to apply and receive workers compensation whilst injured. An employer’s obligation is not only to assist the employee to lodge a workers compensation claims and ensure a safe return to full time work.
This is a further classic case of adverse action and your rights are under pinned under section 340 of the Fair Work Act and also the Australian and Consumer Competition Laws. These claims are challenging and briefing an experienced lawyer will greatly assist in articulating your adverse action claim at Fair Work and the Federal Circuit Court.
When you have exercised your workplace rights regarding discrimination, bullying and sexual harassment, we strongly recommend you lodge an adverse action - general protections claim. In some instances we may also have to lodge a separate discrimination at the Australian Human Rights Commissions and undertake concurrent matters.
When you have been dismissed whilst on sick leave and also on a sick leave certificate, then we will strongly recommend you lodge an adverse action claim. Your sick leave rights are enshrined within the National Employment Standards and your award and when this occurs one must vehemently safeguard their employment rights.
This is a further classic case of adverse action and your rights are under pinned under section 340 of the Fair Work Act and also the Australian and Consumer Competition Laws. These claims are challenging and briefing an experienced lawyer will greatly assist in articulating your adverse action claim at Fair Work and the Federal Circuit Court.
The provisions governing sham contracting are also found in Part 3-1 of the Fair Work Act and an employer is not only prohibited from engaging in sham contracting, it also must not misrepresent an employment relationship as an independent contracting arrangement, including knowingly making false statements and dismissing or threatening to dismiss employees for the purpose of engaging them as independent contractors.
Your employer may be in breach of the general protections provisions of the Fair Work Act 2009 whereby an employer can not coerce or pressure an employee to exercise or not exercise a workplace right.
We regularly receive inquiries regarding sham contracting and when employees have provided an ABN invoice for their services. We would strongly recommend to lodge both an adverse action and sham contracting claim. Connect Legal were the lead lawyers in the landmark Putland, which many law firms write about , but only we know in depth for Plaintiffs on how to manage and succeed on these cases.
You have a right to ask for flexible working arrangement and your employer has to be reasonable and can only reject your request on reasonable operatonal grounds If you have been terminated after your have made your enquiry please call us to discuss further.
A whistleblower is an individual who reports , either verbally and or in writing , to senior management and or officers of the corporation, any kind of information or activity that is deemed illegal, dishonest, unethical , and / or breaches of statutory laws and regulations , for example under the Corporations Act 2000, the Australian Consumer and Competition Laws and or industry specific laws. Corporations and its directors / senior managers have very broad fiduciary and legal obligtaions in the performance of their duties and need to stringently comply with the relevant corporate, environmental, taxation, workplace and / or work health and safety laws. The Corporations Act provides significant safeguards for whistleblowers and makes it a criminal offence to victimise one because of a protected disclosure. Lately we have sensed a greater determination by employees and middle level management to raise their concerns regarding unethical and unlawlful corporate behaviour and conduct. Indeed we regularly also hear " If I speak up I will lose by job" and our advice has been it is essential you speak up when the corporations conduct seriously affects consumers, suppliers , and the general public, physically, financially, and emotionally. Please see further examples of whistleblower conduct and please contact Connect Legal, speak to Richard and or Jake whenever you have been victimised for legitimately raising your concerns.
Lately we have noticed that industrial advocates, who are not legally qualified in lodging adverse action proceedings. Indeed they have a right under the Fair Work Act, but they have no right to progress the adverse action claim at the Local Court, Federal Circuit and or Federal Court. The decision is easy always consult an experienced and qualified solicitor when safeguarding your workplace rights.
Our legal services will be undertaken on a No Win No Fee basis as has been the case from inception when we commenced defending employee rights in the late 90s. We will provide a written costs agreement outlining our No Win No Fee policy and will provide an estimate of the applicable fees.
