General Protections Claims: What the Fair Work Commission’s New Approach Means for Employers
General protections claims are increasing — and employers need to be ready to respond quickly. If an employee makes a general protections claim, hoping it will simply “go away” is not a good strategy.
The Fair Work Commission is seeing a significant increase in general protections dismissal applications and has introduced a more active approach to managing these disputes, including earlier intervention and a greater focus on resolving matters quickly.
For employers, that means one thing: Get your paperwork in order before the claim arrives.
So, what is a general protections claim?
A general protections claim is not simply another unfair dismissal claim. An employee may allege that they were dismissed or otherwise subjected to adverse action because they exercised a workplace right or because of another reason prohibited by the Fair Work Act.
For example, an employee might claim they were dismissed because they:
- made a complaint about their employment;
- took personal or other protected leave;
- raised a workplace safety issue;
- made a workers’ compensation claim;
- exercised a workplace right; or
- engaged in union activity.
Here’s where employers can get caught
Imagine an employee has been performing poorly for six months. The employer has raised the problems with them several times and has issued warnings. Then the employee makes a complaint about their manager.
Two weeks later, the employee is dismissed for poor performance. The employer may have a perfectly legitimate reason for the dismissal. But the timing creates a problem.
The employee may argue: “I wasn’t dismissed because of my performance. I was dismissed because I made a complaint.” Now the employer needs to produce the evidence showing what really happened.
“But we had good reasons” isn’t enough. One of the biggest mistakes employers make is relying on what they remember rather than what they documented.
If the matter ends up in dispute, the employer needs to be able to demonstrate:
What happened?
Who made the decision?
What was the actual reason for the decision?
What evidence supported that reason?
Was the employee given an opportunity to respond?
Were the decision-makers aware of any workplace rights being exercised?
Good documentation can make a significant difference.
The Commission’s new approach
The Fair Work Commission has been dealing with a growing number of general protections applications. Its new approach includes greater emphasis on early intervention and resolving disputes at an early stage.
The Commission has also made changes to its processes and information for general protections matters. For employers, this means claims need to be taken seriously from the beginning. Don’t assume that a claim is just an employee “having a go”.
Seven days can go very quickly
If an employer receives a general protections dismissal application, there is currently a 7-day timeframe to respond. That isn’t much time if the employer has to start from scratch. Someone may need to find:
- employment contracts;
- performance reviews;
- warning letters;
- emails;
- meeting notes;
- complaints;
- policies;
- investigation records; and
- documents showing who made the dismissal decision.
If those records aren’t available, responding to the claim becomes much harder.
The danger of workplace comments
Managers also need to be careful about what they say. For example “Ever since she made that complaint, she’s been a problem.” or “He’s always complaining — let’s just get rid of him.”
A manager may think they’re making an off-the-cuff comment. But if a general protections claim is later made, comments like these can become very important.
Managers should focus on the actual employment issue — performance, conduct, attendance or another legitimate workplace matter — rather than the employee exercising a workplace right.
Don’t stop managing the employee because they make a complaint
This is equally important. An employee making a complaint does not give them immunity from performance management or disciplinary action. If there are genuine performance or conduct problems, the employer can still deal with them.
The key is making sure the action is based on the legitimate workplace issue — not the fact that the employee made a complaint.
The best time to prepare for a general protections claim is before there is one. If an employee has ongoing performance issues, document them. If misconduct occurs, investigate it. If warnings are issued, record what was discussed.
And when a dismissal decision is made, clearly record the reason for the decision and the evidence supporting it. That way, if the employee later says “That’s not the real reason I was dismissed,” the employer has contemporaneous evidence showing how the decision was reached.
WHAT EMPLOYERS SHOULD DO
☑ Document problems as they arise. Don’t create a paper trail the day before dismissal.
☑ Keep performance and conduct records factual. Record what happened, not personal opinions about the employee.
☑ Be particularly careful after complaints. If an employee has recently exercised a workplace right, make sure any subsequent action is properly documented.
☑ Train managers. Managers need to understand that workplace comments can become evidence.
☑ Record who made the decision and why.
☑ Give the employee an opportunity to respond before making significant disciplinary decisions.
☑ Act quickly if a claim arrives. The current response period is only seven days.
☑ Get advice early. Don’t wait until the matter is heading to court.
The takeaway: General protections claims are increasingly part of the employment risk landscape. The strongest protection for an employer is not a clever response after the claim arrives — it’s having a fair, well-documented and properly managed process from the beginning.