Employer lawyers 4 tips to deal with a general protections claim

A general protections claim is one application an Employer does not want to receive.  Ask any employer lawyer, human resources manager or employee relations specialist and when it comes to employment law – a general protections claim are difficult to traverse.  In previous articles we have wrote about:

A number of clients have recently received general protections claims (as opposed to unfair dismissal claims or breach of contract claims) as a result of the current economic environment, restructuring, mergers and acquisitions and workforce planning.  Issues around underperformance and misconduct has also led to several general protections claim.

There are of course non-dismissal general protections claims and although they are becoming more prevalent – general protections claims involving dismissal is much more dangerous to deal with.

What Do You Do If You Receive A General Protections Claim?

Do not confuse a general protections claim with an unfair dismissal claim.  There are some key differences around a general protections claim namely:

  • Reverse onus of proof
  • If the matter proceeds past a conciliation conference in the Fair Work Commission the matter proceeds to the Federal Circuit Court
  • Ability for the Courts to award penalties against individuals involved in the breach/es
  • Compensation can be awarded as well as penalties – which can be quite substantial

Tip 1 – When You Receive A General Protections Claim Call Your Employer Lawyers First

This might seem an obvious one but a general protections claim should be dealt with caution.  Due to the varying elements involved optimally obtaining advice from employer lawyers prior to any “adverse action” such as termination of employment, demotion or warnings should be automatic for employers.  However, if for some reason this is not possible – at the very least employer lawyers should be involved when a general protections claim is received.

Your lawyers for employers will want to look at the following information and documentation as a first step:

  • The general protections claim document and application
  • Notice of listing received
  • Details – potentially a statement from the decision maker
  • Information around the workplace right at the centre of the general protections claim some may include:
    • Complaint or enquiry
    • Medical issues
    • Leave – usually personal/carers
    • Discrimination (or attribute)
  • Any disciplinary action or investigation taken
  • Information from “witnesses”
  • Policies and procedures
  • Contracts of employment

An employer should instruct their employer lawyers to provide advice on the strengths and weaknesses of the general protections claim before preparing a response.

Tip 2 – Obtain A Statement From The Decision Maker As Soon As Possible

It may well be that the key decision maker is named as another respondent to the general protections claim. In any event, obtaining a statement as early as possible grabs pertinent information that with time may well be forgotten. 

In particular, a statement from the key decision maker requires an understanding of the decision makers mindset when identifying the adverse action and in particular the action was not taken because of any prohibited reasons.

Tip 3 – Do Not Ignore The General Protections Claim

When receiving a general protections claim immediate action needs to be taken,   Ignoring one and letting it lead to a potential default judgement is a recipe for disaster. 

We recently wrote an article on mistakes made by Employers defending a general protections claim.  In the case of Ertekin v Euro Natural Stone Pty Ltd [2021] FCCA 512 the Employer simply ignored the claim until eventually damages of more than $85,000 was awarded.   This case is just one example of the dangers in ignoring a general protections claim. This case was explored in this article.

Tip 4 – Keep In Mind What You Are Arguing

There are going to be many aspects of the employee’s employment that an employer may want to canvass.  However the evidence that is useful centre around these  elements:

  • Was adverse action taken?
  • Is there a valid workplace right?
  • Is there a casual connection between the adverse action and the workplace right?

As such, evidence will be integral in disproving the above elements.

Have you received a general protections claim? Or know someone who has?.

NB Lawyers – Lawyers for Employers undertake and offer an obligation free consultation – we are happy to help.

Reach out via service@nb-lawyers.com.au or +61 (07) 3876 5111 to book an appointment.

If you got value out of this article email service@nb-lawyers.com.au or click on this link to subscribe to our value added newsletter. 

Written By 

Jonathan Mamaril 

Director

NB Lawyers – Lawyers for Employers 

jonathanm@nb-lawyers.com.au 

+61 (07) 3876 5111 

Jonathan Mamaril leads a team of handpicked experts in the areas of employment law and commercial law who focus on educating clients to avoid headaches, provide advice on issues before they fester and when action needs to be taken and there is a problem mitigate risk and liability.  With a core value of helping first and providing practical advice, Jonathan is a sought after advisor to a number of Employers and as a speaker for forums and seminars

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