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.

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. Ring Connect Legal for a free telephone consultation.

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.

We regularly receive calls from employers within the building and construction industry and the conduct of your employer is not uncommon. Employers must provide a payslip as required by the Fair Work Act, specifying your hours of work, your pay rate, your gross pay, the tax paid and your net pay. Connect Legal and its team of solicitors have prosecuted countless adverse action matters in the Federal Circuit Court and recovered fair and reasonable compensation. Please contact our office for a face to face discussion.

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.

A) Ordinarily, this would be a straight-forward breach of contract claim which depending on the value of the claim would be brought in any of the state jurisdiction courts. However, breach of contract claims can be very expensive to prosecute and there are significant risks whereby costs orders can be made against you if you are unsuccessful. Our advice would be to consider filing a claim under section 543 of the Fair Work Act 2009 which entitles a national system employee to apply to the Federal Courts to enforce an entitlement which is said to be in the Act, “a safety net contractual entitlement”. Given that your entitlement relates to redundancy, this is a right under the national employment standards and therefore can be prosecuted as a safety net contractual entitlement. In relation to the bonus payments, there are differing judicial views as to whether that is a safety net contractual entitlement, however given that section 139(1) provides that an incentive based payment or a bonus is a term that can be included in modern awards, our position is that indeed such a claim can be made under section 543 as enforcing a safety net contractual entitlement. In the alternative, you may be able to file an application under section 323 of the Fair Work Act, however whilst your employer’s conduct may be a technical breach of section 323, there are competing positions as to whether section 323 is a operative remedial provision of the Act which entitles you to actually recover the outstanding contractual entitlements that may be owed to you.

This is a case of you exercising your workplace rights pursuant to s 340 of the Fair Work Act and the Work Health and Safety Act (NSW) 2011. The client welfare issues that you have raised strike at the heart of the Respondent’s social welfare model in that they have to safeguard their client’s rights and investigate any fundamental breaches of the services provided and their wellbeing. Yes, HR has called you in and has raised a flimsy excuse to terminate you, but deep down it is because of your workplace rights. Connect Legal can conduct extensive phone discussions and if need be come closer to your home for a face to face interview. There are a number of applications we can lodge such as an unfair dismissal claim or an adverse action claim and all the work will be undertaken on a no win no fee basis.

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.

An option is to file with the Fair Work Commission a section 365 Fair Work application alleging that your former employer dismissed you in contravention of section 340 of the Fair Work Act 2009 because you exercised workplace rights. One of the key elements of a section 340 application is that you have to establish to a court that you did in fact exercise workplace rights. By making complaints and inquiries to your employer regarding the caring of the animals, the unsafe work equipment and not receiving a correct pay slip, the court may find that you validly exercised a workplace right by making a complaint or inquiry in relation to your employment under section 341(1)(c)(ii) of the Fair Work Act 2009. In the alternative, it may be said that you have a workplace benefit to a safe workplace under the Work Health and Safety Act 2011 (NSW) (a workplace law) and the benefit of being provided a correct and proper pay slip under section 535 and 536 of the Fair Work Act 2009 and therefore you were exercising a workplace right by seeking to have those benefits under section 341(1)(a) of the Fair Work Act 2009.

Employers usually have policies which tend to regulate employee behavior and conduct during work hours; however, it is not uncommon for policies to extend to • your own conduct and behavior outside of work hours (for example on social media platforms such as Facebook) • political and social views and values There are competing positions of the law as to the length and breadth to which any given workplace policy can extend to regulate your conduct and behavior outside of work hours and as it relates to political expression and to hold various political and social views. There may be consideration, for example, on whether or not when you expressed those political views you did so during work hours, to work colleagues, whether you have publicly associated yourself with your employer, made reference to your employer in your views, and have friends or followers on social media who are co-workers. Under section 351 of the Fair Work Act 2009, an employer is prohibited from taking adverse action against you (for example, counselling) because of a protected attribute that you may have or for a protected reason such as your “political opinion.” However, what is unclear is how that relates to and works with an employer’s right to implement policies to protect the employer’s name and reputation. It may be said that it is perfectly valid for an employer to ask you to remove their name from your Facebook page so that your employer disassociates from your political views. However, it may also be said that the employer has no right to counsel you, discipline you, issue warnings or dismiss you simply because you hold a political view or opinion that is contrary to for example the views held by your manager or director. Our advice is to separate your personal life from your work life, and if you find yourself in a situation where you posted about a political opinion and for example had made no reference to your employer, did not share or include your employees in the post and do not make public your place of work, you should be entitled to express your political opinion on social media and outside of work hours without facing any adverse action from your employer.

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.

This is a case of you exercising your workplace rights pursuant to s 340 of the Fair Work Act and the Work Health and Safety Act (NSW) 2011. The client welfare issues that you have raised strike at the heart of the Respondent’s social welfare model in that they have to safeguard their client’s rights and investigate any fundamental breaches of the services provided and their wellbeing. Yes, HR has called you in and has raised a flimsy excuse to terminate you, but deep down it is because of your workplace rights. Connect Legal can conduct extensive phone discussions and if need be come closer to your home for a face to face interview. There are a number of applications we can lodge such as an unfair dismissal claim or an adverse action claim and all the work will be undertaken on a no win no fee basis.

As a transport allocator, you have fundamental safety issues to adhere under the relevant transport management and chain of responsibility acts and the Work Health and Safety Act (NSW) 2011. Driver fatigue management and overlading of trucks is a very serious work health and safety issue and since you’ve been raising these matters that could be the deep underlying reason they’ve called you in alleging very short term performance issues. Connect Legal has helped numerous individuals within the transport industry from Sydney, country NSW, Australia-wide who have raised these types of chain of responsibility and overloading issues. If over the next 2-3 days, your employment is terminated, ring Connect Legal as a matter of urgency and we will gladly assist you as either an unfair dismissal or an adverse action claim.

As a credit controller, one of the fundamental issues is t ensure the credit you approve for any business, organisation or an individual so within their financial means and serviceability. Over lending to clients when you know they are unable to service those loans is a serious breach of corporate and financial laws and there could be serious implications for the organisation and maybe even yourself. We understand management has called you in and raised performance issues, but rest assured this is all about you raising ethical issues and breaches of credit laws. Please keep detailed diary notes and if your employment is terminated, please ring out office for immediate help.

The court can award damages for your economic loss, as long as you can establish a causal link between the unlawful sexual harassment and the economic loss that is alleged to flow from the conduct. For example, if you resign from your employment and are subsequently unemployed because of the sexual harassment or your employer’s inability to investigate the conduct, you can seek to be paid economic loss for the period of unemployment or for example, any demotion in your employment position. Economic loss can be sought for both past economic loss and future economic loss, for example where you are unfit for work to provide a significant period because of the conduct. Finally, economic loss can also include any losses you incurred for medical, pharmaceutical or other related expenses such as the cost of seeing a medical professional. General damages refers any alleged loss or damage for hurt, humiliation and any injury suffered because of the conduct. Usually an Applicant or victim would file a Medico Legal Report by either a psychologist or psychiatrist which would evidence any loss and damage.

Aggravated damages are awarded where the perpetrator’s conduct is especially vicious or heinous and aggravated in some form. For example, the conduct may be repetitive and continue unabated even where the victim has requested that the conduct cease. Exemplary or punitive damages are often confused with aggravated damages. The difference is that exemplary damages are generally ordered to punish the wrong-doer and to deter the conduct for the future. Exemplary damages are not compensatory in nature and are only imposed in very limited circumstances

Connect Legal for over decades has diligently and quietly defended and safeguarded our client's employment and discrimination rights. The word " fight" conjures up images of undue stress and complexities and we wholeheartedly condemn the use of this word in legal literature. Connect Legal's philosophy is about defending and safeguarding client rights, which required discipline, diligence and extensive tea work. Yes results make take more time, but the landmark judgements we have obtained within the owner driver area, sham contracting, disability discrimination were because of our unique philosophy. Please see our judgement page.

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.