In brief

  • Under the general protections provisions of the Fair Work Act 2009 (Cth), it is unlawful for an employer to subject an employee to detrimental conduct because he or she has a ‘workplace right’ (eg is entitled to the benefit of an industrial instrument), engages in particular ‘industrial activities’ (eg is a union member, or engages in protected industrial action) or has a particular attribute (eg a disability).
  • Defending general protections claims brought under the Act can be difficult and time consuming, particularly because:
    • an employer bears the onus of proving that any detrimental action taken against an employee was not taken for a reason prohibited under the general protections provisions
    • the prohibited reason need only be a reason for the detrimental action, not the substantial or dominant reason, and
    • it requires the employer to lead evidence from the decision maker/s which clearly and comprehensively explains the reasons why certain action was taken, including the reasons why action was taken at a particular point in time.
  • While claims have the potential to be used for illegitimate purposes (eg as a ‘shield’ against reasonable management action, or in furtherance of a broader industrial agenda or claim), recent decided cases in this area reveal that:
    • employers can successfully defend these claims, and
    • the general protections provisions will not operate as a barrier to workplace change, where the change is based on genuine operational reasons.
  • Defending claims instead of opting for the ‘commercial settlement’ can often prove to be a worthy investment—including it can act as a catalyst for workplace change, send a message that the employer is not a ‘soft touch’, and give managers the confidence to make difficult decisions when the need arises.  

Introduction

Defending general protections claims brought under the Fair Work Act 2009 (Cth) (Act) can be difficult and time consuming.

The ease with which employees (and their representatives) can make claims, including applications for injunctive relief during the employment relationship, has also arguably increased the ‘risk’ associated with managing workplace issues.

However, decided cases in this area clearly demonstrate that:

  • management decisions will be upheld where employers can demonstrate a sound operational basis for the relevant decision, and in the process rebut the allegation that they were motivated by any unlawful reason, and
  • applicants are not getting a ‘free-ride’ – cases being pursued for improper reasons (eg as a ‘shield’ against reasonable management action, or in furtherance of a broader industrial agenda or claim) will not be upheld.  

Employers should, as a general rule, also not be too quick in pursuing the ‘commercial settlement’ option, as successfully defending proceedings can have significant commercial benefits.

General protections under the Act

The general protections provisions are found in Chapter 3-1 of the Act. In very general terms, the provisions are an expanded amalgam of the former freedom of association, unlawful termination, coercion and duress provisions under the Workplace Relations Act 1996 (Cth). It is unlawful for an employer to subject an employee to detrimental conduct because he or she has a ‘workplace right’ (eg is entitled to the benefit of an industrial instrument), engages in particular ‘industrial activities’ (eg is a union member, or engages in protected industrial action) or has a particular attribute (eg a disability).

There is often a direct collision between the workplace issue that needs to be managed and a right or attribute ‘protected’ by the general protections provisions of the Act. For example, an employee may not be able to perform the inherent requirements of his or her position because of a disability. Alternatively, an employee may refuse to obey a reasonable and lawful direction of their employer while acting as a union delegate. Another example is where an employee believes that he or she is being managed because of a particular right exercised in the past (eg making an internal complaint) or because of a particular attribute (eg family responsibilities, union member).

Sometimes, employers simply do not manage these issues, fearing the risk and expense associated with a general protections claim to be too great when compared with the possible benefit to be achieved. This concern, whilst understandable given the nature and volume of the ‘claims’ being witnessed, needs to be reassessed in light of some of the important lessons emerging from the decided cases over the past 12 months.

What do the cases reveal?

A number of key success factors emerge from the recently decided cases. These include:

  • Follow established processes and procedures – even if this is the more difficult or time consuming path. Otherwise employers will need to explain why they have deviated from their established protocol. This may be difficult and could lead to adverse inferences being drawn.
  • Proof of reasons for the management action – the decision maker/s must be able to:
    • clearly and definitively explain why they made the decision they did and, in doing so, prove that the decision was not made for reasons which include a protected right or attribute. This is often assisted by limiting the number of actual decision makers, because each decision maker will need to explain why he or she made the decision they did, and
    • clearly delineate between the cause of the workplace issue and the reason for the management action. Often the cause of the workplace issue is the protected right or attribute, but it is not the reason for the employer’s management action. For example, an employee’s disability may be the cause of unacceptable performance but it is not the reason for the management action, which is the failure to perform the inherent requirements of the position.
  • Keep contemporaneous records – of relevant events, meetings and discussions. These records often become key items of evidence.
  • Do not delay – take appropriate action when the issue arises. Otherwise it may prove too difficult to satisfactorily explain why action was taken in the absence of an immediate issue or catalyst.
  • Act reasonably – explain why other management action was not appropriate in the circumstances.
  • When a claim is made – defend the case having clear regard to the statutory framework and the elements of the action that must be proven (and by whom). Avoid any attempts by the applicant (or the applicant’s representative) to ‘gloss over’ the threshold issues. Focus on what is relevant (not what is irrelevant)—do not necessarily defend the case by reference to how the employee pleads his or her case, and always remember it is not an unfair dismissal claim.  

Why defend these claims?

Faced with the time, cost and inherent uncertainty in defending these claims to judgment, many employers choose to offer applicants a commercial settlement. This might be so even where the applicant has no reasonable prospect of success.

While this is a legitimate (and understandable) approach for many employers, there are also benefits, including long term benefits, to be obtained from defending clearly unmeritorious claims. These include:  

  • Workplace change – a successful outcome can help drive workplace change.
  • Sending the message that the employer is not a ‘soft touch’. In particular, sending a message that the employer will not allow employees (or their representatives) to use these claims for illegitimate purposes (eg as a ‘shield’ against reasonable management action, or in furtherance of a broader industrial agenda or claim).
  • Giving managers the confidence and support to proactively manage situations and make difficult decisions when the need arises.  

For these reasons, defending a claim to judgment can often be an effective investment in discouraging further unmeritorious claims. The value of being able to refer to a published decision in which the employer’s actions have been vindicated on all counts should not be underestimated.