When Managerial Action Turns into Contravention

Arising from sometimes questionable, ill-timed, or inappropriate action, employers can be hit with claims, and are often asking how do they defend against a General Protections claim.

This article will seek to explore how a General Protections claim can come to be, and what lessons can be learned from the Courts and Commission in taking steps to reduce the likelihood of an employee bringing a General Protections claim.

What are General Protections?

In relation to employees, a General Protections claim may arise under the Fair Work Act 2009 (Cth) (the Act), where an employer takes ‘adverse action’ (such as altering an employee’s position or terminating an employee) against an employee because:

1. The employee has, proposes to exercise, or exercises, a workplace right;

2. The employee is, or is not (or was, or was not), a member of an industrial association;

3. The employee proposes to engage in, engages in, or has engaged in (or has not/ does not engage in) industrial activity;

4. Of the employee’s race, colour, sex, sexual orientation, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin; and/or

5. The employee is temporarily absent due to an illness or injury.

(collectively, Protected Attributes)

Where an employee asserts that such action has been taken against them because they possess a Protected Attribute, the Court will presume this to be true unless proven otherwise.

It results that employers face the arduous task of showing that any action taken by them was for an alternative reason, not because of a Protected Attribute.

Case Examples

Recent cases display why employers need to have careful consideration, and should seek appropriate advice, before deciding to take what is classified as ‘adverse action’ against an employee.

Within the interlocutory decision of Crispe v Bank of Queensland Limited [2021] FCCA 115, Jarrett J highlighted the difference between an inquiry and complaint, and when such can comprise a workplace right capable of being contravened. His Honour referred to the following passage of Henry v Leighton Admin Services Pty Ltd & Anor [2015] FCCA 1923 at [44]:

A complaint is about something; there must be a subject about which a person states a grievance or makes a finding of fault. Similarly with an inquiry. An inquiry is the act of seeking information about something; there must be a subject about which a person seeks information.

His Honour held an employee seeking information about a pay rise, and information in regard to the removal of entitlements relating to parking and fuel, were both inquiries. While the substantive case is yet to be decided, it is notable for employers that mere questions concerning employment can give rise to a workplace right for an employee.

In the case that an employee has made complaints, and the employer proceeds to terminate the employee, the consequences can be significant. Within Roohizadegan v TechnologyOne Limited (No 2) [2020] FCA 1407, a high performing employee who had complained about being the subject of bullying, and was subsequently terminated, was recently awarded over $5.2 million in compensation. It was noted in that case that the workplace had professional HR advice to the effect that, in relation to allegations made against the employee, it would be unfair to dismiss the employee on the basis of mere allegations.

A further common basis for General Protections claims surround employees becoming sick or injured and being unable to attend work (or filing a Workers’ Compensation Claim). Within Masson-Forbes v Gaetjens Real Estate Pty Ltd [2015] FWC 4329, an employee became ill and was away from work for several months. During her illness, the employee was on approved leave and filed a Workers’ Compensation Claim. Upon the employee’s return, she was subject to ill-resourcing and unreachable performance targets. In finding that the employer had failed to rebut the presumed reason for action, Commissioner Wilson stated:

Gaetjens has not explained plausibly what its motivations were for its decisions, or why improbable and unreasonable targets should be unilaterally imposed on her, at the same time as her duties were significantly changed.

Employers need to note that an employee being unable to work due to an illness or injury may give rise to protections under General Protections and/or discrimination provisions of the Act. Caution should always be exercised, and advice sought, when dealing with protected employees.

Lessons to be Learnt

While an employer cannot stop an employee from filing a General Protections claim, preventative action can reduce the risk of such a claim being filed. From the above cases, employers should be aware of, and take into consideration:

1. An employee’s position and attributes;

2. Recent action taken by an employee (and whether such is protected);

3. The reasons why the employer is taking action (and whether such are protected); and

4. Whether the employer can evidence their reasoning for taking such action (which may include the need to undertake investigations, or being able to produce records/evidence).

Employers need to ensure the reason they are taking action falls outside of protected reasons which may give rise to a General Protections claim. If an employee has a Protected Attribute (even if such is not the reason for action against the employee), employers need to turn their mind to the fact that, if an employee brings a claim, they will need to be able to demonstrate that they did not take action because of an employee’s Protected Attribute.

It is always recommended that an employer seek appropriate advice prior to taking action which may leave them open to liability. Saines Legal is a full-service employment law firm and are here should you require advice. Do not hesitate to contact us via info@saineslegal.com.au or (07) 3324 1055, to organise a consultation.

Disclaimer

The contents of this article are general in nature and is for information purposes only. The content of this article does not constitute legal advice and should not be used as such. Should you require assistance with a specific legal matter, it is recommended that you seek appropriate advice.