General Protections

30/04/2019

REASONS YOUR EMPLOYER CANNOT DISMISS YOU

Let us ask you some questions?

Are you facing dismissal from employment? A reduction in entitlements? Even the imposition of a warning?

Do you know or suspect the reason as to why your employer is taking these actions?

Do you know that the Fair Work Act is a law that applies to most employers and employees in Australia and it contains protections for employees when an employer takes action against them for certain defined reasons?

These protections are known as the ‘general protections’.

The technical way that the law describes the protection is that an employer must not take adverse action against an employee because the employee has a workplace right, has exercised a workplace right or proposes to exercise a workplace right.

There are two important concepts. The first is adverse action. The second is workplace right.

Let’s break it down and explain it practically.

Adverse action?

Adverse action encompasses situations where an employer dismisses an employee, injures them in their employment (not necessarily physical injury), alters the position of the employee or discriminates against the employee (on the grounds of defined reasons).

Practically this usually occurs when an employee is dismissed, is given reduced entitlements (such as denied overtime), warned and threatened with dismissal, refused a promotion, or denied other benefits.

Adverse action is a broad term and applies to many and varied scenarios.

Workplace rights?

In order to be unlawful, the adverse action needs to be taken because of a reason or reasons linked to a workplace right. Workplace rights include situations where:

  • an employee is entitled to the benefit of or has a responsibility under a workplace law, workplace instrument or order made by an industrial body
  • is able to initiate or participate in a process or proceeding under a workplace law or workplace instrument
  • is able to make a complaint or inquiry:
  • to a person or body having the capacity under a workplace law to seek compliance with that law or instrument; or
  • if the person is an employee – in relation to his or employment.

Some practical examples of Gordon Legal acting for employees who have exercised workplace rights include employees who have taken sick leave and been faced with dismissal as a result, an employee who complained about being denied overtime after complaining about non-payment of superannuation payments, an employee who joined a Union and the employer tried to dismiss them to stop others joining and an employee who was faced with the threat of dismissal for continuing to remain on pre-approved annual leave – they were overseas at the time!

Each of the above scenarios constituted a contravention of the general protections and Gordon Legal was able to help.

What can be done?

An employer that contravenes the general protections can be liable for substantial penalties and damages. The powers of the Court are very broad and designed to allow the Court to protect employees including by allowing the Court to reinstate an employee to employment or even prevent an employer from acting upon a threat to terminate.

Gordon Legal takes pride in defending employees. We feel that there are basic rights and protections that all employee should be able to enjoy. We adopt a nuanced approach to reflect your individual goals and rights.

Gordon Legal are experts in the field whose sole focus is assisting employees in times of difficulty in the workplace. We specialise in winning these types of claims and defending fairness in the workplace. Contact our friendly team on 1800 21 22 23 to discuss your claim.

Make sure you don’t delay because of the strict deadlines.