General Protection/Adverse Actions

In Australia, the Fair Work Act 2009 (Cth) provides employees with certain protections. Two of the key mechanisms for enforcing these protections are general protections claims and adverse action claims. As an employer, it is vital that you understand how these protections operate in Australian workplaces. 

General Protections

General protections claims are brought by employees who believe that their employer has taken adverse steps against them because of a protected attribute that they have, such as their race, sex, age, or political beliefs. Examples of adverse steps include dismissal, demotion, and suspension. General protections claims can be made to the Fair Work Commission or the Federal Court. The burden is on the employee to prove that the adverse step was taken, at least in part, because of their protected attribute. 

Adverse Action

In an adverse action claim, an employee will claim that adverse action was taken against them because they exercised a workplace right. Examples of workplace rights include taking leave, making a complaint about workplace conditions, or joining a union. Adverse action claims can be made to the Fair Work Commission or the Federal Court. Unlike in a general protections claim, the onus is on you as the employer to prove that the adverse action was not due to the exercise of a workplace right. 

Preventing Claims

Defending a general protection or adverse action claim can be a complex process, with no certainty of success. You are far better off preventing the claims from arising in the first place. 

The best defence against claims arising is to have clear HR policies in place. These policies should set out your expectations for employees and the consequences for failure to meet these expectations. You should also consider having specific policies on bullying, discrimination and termination. HR policy documents should describe how the policies are implemented, such as the steps that are to be taken in the event of a termination due to poor performance. Perhaps most importantly, you need to ensure that everyone in your organisation follows these policies when they are dealing with your employees.  

It is also vital that your organisation keeps accurate records. Remember that in the case of an adverse action claim, the onus is on you to prove the reason you took an action. The best way to do this is to have contemporaneous records, preferably multiple records, that record the reason. 

Even the best run businesses might become the subject of a general protections or adverse action claim at some point. When such claims arise, your best chance of success is to seek legal advice from experienced employment lawyers in the Gold Coast. 

We focus exclusively on employment and industrial relations law matters for employers on the Gold Coast and Australia-wide. We have broad knowledge and advise clients in local government and numerous other industries including tourism and hospitality, retail, professional services, construction and medical. We deliver knowledgeable, pragmatic, and commercial solutions and have a depth of experience across all areas of employment law.

For expert employment law advice contact [email protected] or call 1300 421 599.