Councils beware of General Protections claims – “slow the process down”

General Protections claims have become a convenient tool for employees working in local councils to avoid or even unnecessarily prolong legitimate performance management issues, action regarding illness and injury and misconduct concerns. Executives and managers in Councils need to be aware of how to protect their organisation against such claims and reduce the risk and liability that may arise from general protections claims.

A case which has highlighted the steps Councils should take is the recent case of Construction, Forestry, Mining and Energy, Industrial Union of Employees, Queensland v Goondiwindi Regional Council & anor [2018] QIRC 128 (Goondiwindi Case) which involved the actions of two employees against the Goondiwindi Council and their supervisor. It centred around the employees’ involvement in an industrial activity. 

What is interesting (and this happens quite often) is that the Council wished to take disciplinary action against the employees for performance shortfalls however trying to distance this disciplinary action (which would involve warnings) from the industrial activity was key to a successful defence.   

The union argued:

·        The adverse action taken against the employees was the issuance of a notice of proposed disciplinary action;

·        Further adverse action was a formal warning being issued;

·        The employees made complaints to the union regarding unsafe spraying practices constituting industrial activity a workplace right that had been exercised;

·        The employees made complaints to the union regarding the outcome of performance appraisals constituting industrial activity a workplace right that had been exercised;

·        The adverse action taken was because of the exercise of the workplace right.

For all Councils the “reverse onus” is a significant hurdle to overcome and that is why it is integral to slow the process down and avoid attempting to performance manage an employee when a potential exercise of a workplace right is exercised such as industrial activity or taking time off on “sick” leave.

Like the Goondiwindi Case a good approach to these types of matters is:

·        Hold a meeting with employees and their representatives regarding their concerns;

·        Respond in writing to their concerns stressing that any complaints or enquiries are quite separate to any performance management taking place;

·        Comply with any policies in place and ensure they are followed strictly;

·        Ensure that any actions of staff (including executives and managers) cannot be characterised as “hostile or antagonistic” against the complainants – demonstrating cool heads and following process is a much better way of dealing with such matters;

·        Understand the legal risk when action is taken and are there any other steps that could be taken to mitigate this risk?

What are general protections?

Local councils in Queensland are not considered national system employers and therefore are required to comply with the state legislation, Industrial Relations Act 2016 (Qld) (Act). The Act outlines various general protections in the workplace. General protections safeguard workplace rights, provide protections from discrimination and offer relief and compensation for workers who have experienced unfair treatment, been discriminated against or victimised.

What is adverse action?

An employer (such as local Councils) must not take ‘adverse action’ against another person because that person has a workplace right, has exercised a workplace right or proposes to exercise a workplace right.

An adverse action may include:

  • Dismissing an employee
  • Refusing to hire an employee
  • Discrimination between an employee and other employees
  • Altering an employee’s position to their disadvantage
  • Not giving an employee their legal entitlements
  • Offering an employee unfair and different terms and conditions compared to others in the workplace
  • Injuring an employee in their employment

If an employee’s (or prospective employee’s) general protections are impacted by adverse action (as specified under the Act) the employee may have a claim before the Queensland Industrial Relations Commission.

Implications for local councils

It is important to realise that general protections claims can be made against any local council including the supervisory employees being individually named on the application. 

A general protections claim, due to the potential negative publicity that is associated with it, requires sound legal advice from experienced employment lawyers.

Are you vulnerable to a general protections claim? NB Lawyers, the lawyers for employers, offer a consultation to all Councils please contact our office on (07) 3876 5111 for a consultation.

Written By

Jonathan Mamaril

Principal

NB Lawyers – Lawyers for Employers

jonathanm@nb-lawyers.com.au

+61 (07) 3876 5111

About the Author

Jonathan Mamaril is the principal and director of NB Lawyers, the lawyers for employers, and a specialist in employment law. Over the last ten years, Jonathan has helped hundreds of employers understand their legal requirements, mitigate risk and liability, protect their reputation and achieve their goals for business growth and expansion.

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