General Protections Lawyers for Employers

Employer Services Legal advises and represents employers responding to general protections claims under the Fair Work Act 2009 (Cth) (‘FW Act’).

General protections claims can arise when an employee is dismissed but can also arise when an employee is not dismissed.

These claims can involve significant legal and financial risk for employers and may progress from the Fair Work Commission to the Federal Circuit and Family Court of Australia or Federal Court of Australia.

Early legal advice is important.

The general protections provisions of the FW Act protect employees and other persons from adverse action taken for certain prohibited reasons.

Prohibited reasons include:

Adverse action can include dismissing an employee, injuring an employee in their employment, altering their position to their prejudice or discriminating between the employee and other employees. Some examples of adverse action are as follows:

However, the fact that an employer has taken action that adversely affects an employee does not necessarily mean that the employer has contravened the general protections provisions.

A central issue is often the reason or reasons why the action was taken. The general protections laws require adverse action to be taken because of a prohibited reason.

This makes the evidence surrounding the decision particularly important.

Contemporaneous documents, correspondence, performance records, investigation material and evidence from the people responsible for the decision may all become relevant.

An important feature of the general protections provisions is the reverse onus of proof. The onus is on the employer rather than the employee to establish why a person was subject to adverse action because of a prohibited reason.

If the employer is unable to discharge this onus, then it will be assumed that the adverse action alleged to have been taken did in fact occur for the prohibited reason. All the employee has to do to initiate the reverse onus is to prove the existence of objective facts which are claimed to have formed the basis for the alleged adverse action.

Essentially, where it is alleged that adverse action was taken for a prohibited reason, the employer will need to establish that the action was not taken for that reason.

Therefore, the evidence of the person or people who actually made the decision can be critical. For this reason, employers facing a general protections claim should obtain advice early and preserve the documents and evidence relating to the decision.

General protections claims frequently involve allegations that adverse action was taken because an employee exercised a workplace right.

A workplace right can arise in a range of circumstances and may include an employee making a complaint or inquiry in relation to their employment.

This can create particular risks where disciplinary action, performance management or dismissal occurs after an employee has made a workplace complaint.

Timing alone does not necessarily establish that unlawful adverse action occurred. However, employers need to be able to establish the actual reasons for the decision that was made.

We assist employers to identify these issues and assess the evidence supporting their position.

Given the myriad of circumstances that general protections claims can arise, we advise and represent employers in general protections matters involving:

We provide employers with clear advice about the allegations, potential exposure and available options.

A general protections claim should be taken seriously from the outset.

We can review the application, obtain instructions from the relevant decision-makers, examine the documents surrounding the employment decision and advise on the strengths and weaknesses of the claim.

We can then prepare the employer's response and represent the employer in the Fair Work Commission.

Where appropriate, we also advise on settlement strategy and negotiate a resolution on behalf of the employer.

General protections disputes generally proceed initially through the Fair Work Commission.

The Fair Work Commission may conduct a conference to assist the parties to resolve the dispute.

Employer Services Legal can prepare your response for the conference and represent you throughout the process.

Preparation can include identifying the relevant decision-makers, reviewing documentary evidence, analysing the allegations made by the employee and developing an appropriate strategy for the conference.

Where a resolution is reached, we can prepare settlement documentation designed to bring the dispute to an end.

General protections claims can proceed beyond a conference if they are not resolved.

This makes it important to consider the potential litigation risk at an early stage.

Employer Services Legal can advise employers about the prospects of the claim, potential remedies and penalties, evidence, costs and the commercial considerations involved in defending or resolving proceedings.

Where proceedings progress to court, we can advise and represent the employer throughout the litigation process.

Employers do not need to wait until a claim has been made before seeking advice.

We regularly advise employers before significant employment decisions are made.

This can be particularly important where an employee has recently:

We can advise on the proposed action, identify general protections risks and assist the employer to document the legitimate reasons for its decision.

Employer Services Legal Principal, Charles Lentini, has extensive experience advising and representing employers.

His experience includes advising employers from the earliest stages of a dispute, preparing responses to general protections applications, representing employers in Fair Work Commission conferences and dealing with matters that progress beyond the Fair Work Commission.

General protections claims can be particularly complex because the reasons for an employer's decision, the evidence of the relevant decision-makers and the reverse onus provisions of the FW Act may become critical.

Charles' experience acting exclusively for employers enables him to provide practical advice about these issues while also considering the commercial and workplace implications of the dispute.

His focus is on ensuring that employers understand the claim against them, their legal position and the available options for resolving or defending against the claim.