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These issues can too often be the reason why some employees have their employment terminated, and in the law, these matters are deal with under what is called “general protections”.
At RCT employment, our lawyers offer specialist legal advice to people who have been dismissed from work and who may be better defended under general protections than by making an unfair dismissal claim.
You may have grounds to pursue a general protections claim if your employer takes “adverse action” against you:
- because you have exercised a workplace right, such as making a complaint or inquiry in relation to your employment;
- because of your 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; or
- because you have engaged in certain kinds of industrial activity.
Differences Between Unfair Dismissal And A General Protections Claim
There are a number of key differences between an unfair dismissal claim and a general protections claim. These include:
- The eligibility criteria – generally speaking, general protections claims are open to a much wider range of people, including: casual employees; those who have not completed the minimum period of employment; those who earn above the high-income threshold (link to section on unfair dismissal above); prospective employees; and, in some circumstances, independent contractors.
- The type of activity that is prohibited – with some exceptions, general protections claims do not only apply to “dismissals” but extend to any kind of “adverse action” occurring in the workplace. “Adverse action” is defined broadly and can include any situation where an employer injures an employee in his or her employment, alters the employee’s position to his or her prejudice or discriminates between the employee and other employees. As such, it is possible to pursue a general protections claim while still working for a particular employer.
- The outcomes available – unlike unfair dismissal, compensation for a general protections claim can include a component for hurt and humiliation and is not limited to 26 weeks of the employee’s pre-dismissal income.
- The process – like unfair dismissal, the first step after lodging a general protections application is usually a conciliation conference facilitated by the Fair Work Commission. If, however, the matter does not resolve at conciliation and you wish to take it further, you will generally need commence proceedings in either the Federal Court or the Federal Circuit Court.
Like unfair dismissal, a general protections claim involving dismissal must be lodged with the Fair Work Commission within 21 calendar days of the date the dismissal took effect, unless there are exceptional circumstances justifying an extension of time. Therefore, it is important that you obtain advice as soon as possible.
Our Melbourne employment lawyers can help you decide which claim is more appropriate in your circumstances. It is important that you make your selection carefully, as it is not possible to pursue an unfair dismissal claim and a general protections claim in respect of the same conduct.
Bullying, harassment and discrimination
No employee should have to experience bullying, harassment or discrimination in the workplace. However, for the unfortunate number that do, there are a number of laws you can utilise to put an end to, or seek redress for, such conduct.
Bullying, harassment and discrimination each have distinct legal meanings.
Under the Fair Work Act 2009 (Cth), bullying is defined as repeated unreasonable behaviour towards a person at work that creates a risk to health and safety. However, it does not include reasonable management action carried out in a reasonable manner.
If you believe that you have been bullied at work, you may apply to the Fair Work Commission for a “stop-bullying order”. If satisfied that bullying has occurred and there is a risk that it will continue, the Fair Work Commission has the power to make any order it considers appropriate to prevent a worker from being bullied.
However, as the purpose of the Fair Work Commission’s anti-bullying regime is preventive rather than punitive, it does not have the power to award financial compensation or impose a pecuniary penalty.*
*Employees who suffer a workplace injury as the result of bullying at work may have entitlements under workers compensation legislation. For further information, refer to the WorkCover section of our website.
Discrimination differs from bullying in that it generally refers to unfavourable treatment because of a protected attribute. There are a number of different Victorian and Commonwealth Acts which prohibit discrimination in relation to employment, and the precise elements needed to prove discrimination will vary depending on which Act is utilised.
For example, the Equal Opportunity Act 2010 (Vic) prohibits discrimination on the basis of:
- employment activity;
- gender identity;
- industrial activity;
- lawful sexual activity;
- marital status;
- parental status or status as a carer;
- physical features;
- political belief or activity;
- religious belief or activity;
- sexual orientation;
- an expunged homosexual conviction; and
- personal association (whether as a relative or otherwise) with a person who is identified by reference to any of the above attributes.
The process involved in pursuing a discrimination claim and the available outcomes will vary depending on:
- which Act is utilised (eg the Equal Opportunity Act 2010 (Vic), the Sex Discrimination Act 1984 (Cth), the Disability Discrimination Act 1992 (Cth), the Age Discrimination Act 2004 (Cth), the Racial Discrimination Act 1975 (Cth) or the Fair Work Act 2009 (Cth)); and
- which forum the claim is lodged in (eg the Victorian Equal Opportunity and Human Rights Commission, the Victorian Civil and Administrative Tribunal, the Australian Human Rights Commission or the Fair Work Commission).
Finally, harassment can refer to sexual harassment (which is unlawful under the Equal Opportunity Act 2010 (Vic) and the Sex Discrimination Act 1984 (Cth)) or disability harassment (which is unlawful under the Disability Discrimination Act 1992 (Cth)).
If you believe that you have been bullied, discriminated or harassed, seek advice to explore your options.