General Protections Claims
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General Protections Claims

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General protections claims

General Protections Claims

What are They & Who can Make a Claim

Presented by Perth’s experienced Employment Lawyers - Havilah Legal


General protections claims

What is a General

Protections Claim

and Who can

Make a Claim?

The Law in relation to general

protections under the Fair Work Act

2009 is essentially designed to protect

prospective and existing employees

against unfair, unlawful and

discriminatory treatment.


General protections claims

What is a General

Protections Claim

and Who can

Make a Claim?

Under the Fair Work Act 2009, an

employer must not take adverse

action

action against another person,

because that other person has a

workplace right

workplace right, exercises a

workplace right, or proposes to

exercise a workplace right.

adverse

Continued


General protections claims

What is a General

Protections Claim

and Who can

Make a Claim?

A person is also protected from

adverse actions because of their:

-

-

-

-

-

-

-

Race,

Colour,

Sex,

Age,

Marital status,

Pregnancy,

Religion and other specified

grounds.

Continued


General protections claims

What is a General

Protections Claim

and Who can

Make a Claim?

An employee can make a General

Protections Claim when adverse

action

action is taken or threatened against

them, because they have a workplace

right, exercises such a right or, in

some cases, proposes to exercise such

a right.

adverse

Continued

In some cases a General Protections

Claims may be made by a prospective

employee or an independent

contractor.


General protections claims

What is a General

Protections Claim

and Who can

Make a Claim?

By way of example, a person may

make a claim under the Act if he or

she is dismissed and can show that

the dismissal was because he or she

had exercised a right to take leave due

to illness.

Continued

There must

the adverse action and the workplace

right.

must be a connection between


General protections claims

What is a General

Protections Claim

and Who can

Make a Claim?

In relation specifically to Western

Australia, it is important to note that

a General Protections Claim cannot

be made by certain employees such

as:

-

Those employed by the State

Government, and

Employees employed by entities

which are not corporations such

as sole traders and partnerships.

Continued

-


General protections claims

What is a General

Protections Claim

and Who can

Make a Claim?

A person who claims to have been

dismissed in connection with a

workplace right must generally file an

application with the Fair Work

Commission within 21 days after this

dismissal took effect.

Unlike unfair dismissal claims, there

are no qualifying periods or

remuneration caps to be eligible to

make a General Protections Claim.

Continued


General protections claims

What is a General

Protections Claim

and Who can

Make a Claim?

This means that general protections

apply from the start of a person’s

engagement at work and, in some

cases, before the person is engaged,

and apply no matter what the person

earns.

Continued


General protections claims

The term ‘workplace right’

‘workplace right’ has a

broad meaning. Essentially a person

has a workplace right if he or she has

an entitlement under a workplace law

or an award or enterprise agreement

and is able to make a complaint or

inquiry in relation to their

employment.

What is a

Workplace Right?


General protections claims

Accordingly, a workplace right would

include:

What is a

Workplace Right?

-

-

-

-

Entitlement to annual leave

Personal, carer’s or parental leave

Redundancy and wages

Ability to be represented by a

representative of his/ her choice

during negotiations.

Not to be discriminated against

on the grounds of race, colour,

gender etc.

Continued

-


General protections claims

Adverse action

Adverse action includes:

What is Adverse

Action?

-

Dismissing or refusing to employ

a person

Discriminating against them or

prejudicing them in their

employment e.g. by demoting or

suspending them, reducing their

overtime or ordinary hours of

work or reducing pay.

-


General protections claims

What Must

Employers

Ensure?

If an employer intends to take any

action against an employee that will

have the effect of disadvantaging that

person such as dismissal, demotion,

reduction of pay or bonus, the

employer must ensure that there is no

connection between that action and a

workplace right that the employee

has, has exercised or is entitled to

exercise.


General protections claims

The remedies available to a claimant

who successfully makes a General

Protections Claim may include the

imposition of a financial penalty on

the employer; an order for

reinstatement of the claimant; and an

order awarding compensation for loss

suffered by the claimant because of

the contravention by the employer.

Remedies


General protections claims

Want to Find Out More?

For more information visit Havilah Legal today or contact our employment lawyers

Perth.

Presented by Perth’s experienced Employment Lawyers - Havilah Legal


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