Fighting general protections claims

Defending a general protection claim can be expensive and time consuming.  The following information is intended to aid employers in understanding how to deal with an employee who threatens to commence, or in fact does commence, a general protections claim.

What are general protections?

Part 3-1 of the Fair Work Act 2009 (Cth) (Act) contains a number of provisions to safeguard the workplace rights and freedom of association rights of employees, employers and other members of the workforce.  These provisions are called ‘general protections’ and have been divided into protections relating to:

• an employee exercising, or intending to exercise a workplace right;
• engaging in industrial activities;
• discriminating against another person or treating them less favourably because of a personal attribute, such as their race, sex, age or disability; and
• sham contracting arrangements.

What is a general protections claim?

The right to make a general protections claim to the Fair Work Commission arises when adverse action is taken or is threatened because a person with a workplace right, exercises such a right or proposes to exercise such a right.

What is adverse action?

Section 342 of the Act describes the following circumstances in which an employer may have taken adverse action against an employee:

• dismissing the employee;
• injuring the employee in their employment;
• altering the employee’s position to the employee’s detriment;
• discriminating between the employee and other employees of the employer.

Adverse action also includes “threatening” to take the action against an employee.

If one of the reasons for the employer’s action is contrary to the provisions then a breach will be established. It does not matter whether there are other reasons motivating an employer to take action.

When an employee claims an employer has taken (or threatened to take) adverse action against him or her, the employer has the onus of proving on the balance of probabilities that the action was not taken for the proscribed reason.

If the employer fails to discharge the onus, the Court will presume that the action was taken for the proscribed reason.

Whether adverse action is taken for a prohibited reason is a question of fact and all relevant factual matters will be considered including the reason given by the employer for the action and whether the reason is supported by credible evidence.

Discharging the “onus of proof”

In defending an “adverse action” claim, the employer will need to provide credible evidence which explains the reason or reasons why the adverse action was taken against the employee.

The employer must present the person or people who were the key decision-makers in the decision to dismiss the employee, such as the employee’s direct manager.

Importantly, the evidence of the key decision-maker should include a denial that the adverse action was taken for the alleged prohibited reasons.

If the key decision-maker can give credible evidence that the prohibited reason was not a substantial or operative reason, and there is no convincing evidence to the contrary (such as documents or witness evidence), the employer will be able to take the adverse action without contravening the general protections provisions.

If the employer is not able to discharge its onus, it will be assumed to have taken adverse action for a prohibited reason.

What actions might not discharge the “onus of proof”?

In CFMEU v Bengalla Mining Company Pty Ltd, the Federal Circuit Court identified the following as circumstances in which the employer might not discharge the onus of proof: the managers’ evidence is discredited in cross-examination;

• the managers’ evidence is inherently implausible;
• objective facts contradict the managers’ evidence;
• the managers’ evidence is not supported by contemporaneous documents;
• there is other evidence suggesting that the managers had a problem with the employee.

Tips for employers

Below are some key tips to assist employers discharge the onus to proof, based on the approach of the Court in recent decisions.

• Be clear about the reasons for termination which are given to the employee at the time of the dismissal. If an employee brings a claim, the employer will be tested on these reasons.
• Prepare evidence to support the reasons provided at the time of termination. The Courts will not only look at the termination letter but also any other correspondence or documents which may provide insight into the mind of the decision maker at the time of termination.
• Ensure the reasons given to the employee can be tested against the circumstances and context at the time of the termination. For example, if the employee was dismissed for poor performance, the employer will need evidence to support this.
• Employers will also need evidence that rebuts the claim that the termination was because of a workplace right or engagement in industrial activity.
• In defending a claim, the Court will need to hear from all decision makers involved in deciding to terminate the employee’s employment. Their evidence will need to prove the employee’s workplace right or involvement in industrial activity had no bearing in the decision. As such it is recommended the number of decision makers be kept to a minimum where possible.

Links and further references

Legislation

Fair Work Act 2009 (Cth)

Cases

CFMEU v Bengalla Mining Company Pty Ltd [2013] FCA 267

Further information

If you are an employer and would like further information about this topic, contact us for a confidential and obligation-free discussion:

Disclaimer

This article contains general commentary only.  You should not rely on the commentary as legal advice.  Specific legal advice should be obtained to ascertain how the law applies to your particular circumstance.

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