Australia: Fair Work Act: Are General Protections Claims on the Rise?

The recent predictions about the use of the general protections provisions under the Fair Work Act have come true. The Fair Work Australia Annual Report for 2010-11 indicated that the use of the general protections provisions had increased by about 50-60% in that year and, anecdotally, we're seeing a number of these sorts of claims being brought.

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Well it's fair to say that the recent predictions about the use of the general protections provisions under the Fair Work Act have come true. The Fair Work Australia Annual Report for 2010-2011 indicated that the use of the general protections provisions had increased by about 50-60% in that year and anecdotally we're seeing a number of these sorts of claims being brought.

One of the interesting things is the number of claims being brought by senior executives, such as the claims against Virgin Australia. We saw one the other day being brought against Optus, of senior executives bringing claims for bullying, harassment and characterising them as general protections claims.

So why would an employee bring a general protections claim? Particularly over an unfair dismissal claim, which is the usual form for challenging dismissals and terminations. Firstly we've not just dealing with dismissals here, so you can use a general protections claim to challenge a whole range of management action, including disciplinary action or investigations. There's a relatively low success rate for unfair dismissal claims and we're not seeing that carried through with general protections claims. There's a reverse onus of proof quite significantly so employers in this area once certain things are established, will actually be deemed to be guilty until they prove themselves innocent. And managers can actually be personally sued under these provisions, which is a significant area of concern.

The other important thing to note with general protections claims is whereas unfair dismissal provisions deal with examining whether a dismissal is actually fair, a general protection claim deals with what is the motivation of the manager making the decisions – so deciding to make someone redundant or deciding to make a significant business decision. And that's where HR practitioners and lawyers can really play a role in early intervention in testing out the reasoning behind some of the significant employment decisions which managers are making, to make sure that they are not motivated by a prohibited reason. It puts more emphasis that there should be significant planning which goes into making management decisions which have an impact on employees and involve human resource practitioners and also their legal counsel in that planning to actually sanity check some of their decisions, to ensure that there's no suggestion that they're motivated by a prohibited reason under these sorts of provisions.

It's all about the motivation of the manager making a decision then they'll be witness number one in general protections proceedings and companies really have to consider who the decision maker is because it may be that they do not want their senior managers involved in these types of claims.

Because of the prominence of these sorts of provisions and the way that they're being used it's really not surprising that we've got a significant case before the High Court at the moment involving general protections provisions and this particular area has been the focus of significant comment in the current review of the Fair Work Act which is occurring.

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