General protections: what employers need to know

Damn right we can, employer X, so let’s go! The Fair Work Act 2009 affords general protections to all employees in the national workplace relations system. General protections contained in the Act refer to three distinct areas: workplace rights, industrial activity and discrimination.

Under the Fair Work Act 2009, a person must not take adverse action against another person because that other person has a workplace right, exercises a workplace right, or proposes to exercise a workplace right.

“Adverse action” is action taken by an employer that is unlawful if it is taken for particular reasons. Examples of adverse action include:

• a discriminatory reason such as race, sex, age, physical or mental disability, pregnancy, religion, political opinion or nationality;
• treating an employee differently to others in the workplace;
• disadvantaging the worker in their employment through altering their position, demoting them or reducing their ordinary hours of work;
• terminating employment because the employee has lodged a workplace complaint or because the employee has made a workplace enquiry.

Prospective employees are also protected from adverse action on specific grounds.

Unlike a claim for unfair dismissal, a general protections claim does not necessarily have to involve the employee being dismissed, only the demonstration of “less favourable treatment”.

So…does the existence of general protections mean an employer is not able to manage the performance of an underperforming employee?

Not at all. But care needs to be exercised. And here’s why:

The Fair Work Commission’s latest Annual Report shows that general protections claims are on the rise. In 2016–17, 3,729 applications were made to the Commission to deal with general protections disputes involving dismissal, an increase of 14 per cent from the previous year.

Managing underperforming employees is something many employers find challenging. SME’s often have no in-house HR resource to provide the right advice so knowing where to start, what to say and what to stay away from can mess with your head . But expert help and advice is available…from Bare Bones Consulting.

We can walk you through a simple performance management process that takes away the emotion, drama and risk…leaving you time to focus on what’s really important: your business. Give us a call or use the Contact Us pane at the bottom of this page…we love receiving your emails!