Unfair Dismissal, General Protections & Redundancy
Managing the workforce can sometimes be a difficult and daunting task. We specialise in putting together preventive measures and advising you when things go wrong.
We offer legal advice on all aspects of employee management including:
- Developing workplace policies and procedures;
- Unfair dismissal claims;
- General Protections claims;
- Serious Misconduct;
- Performance Management;
- Underpayment of wages claims;
- Parental leave;
- Redundancies and restructures; and
- Modern Award interpretation.
The workplace relations and employment law team has significant experience in dealing with claims before the Fair Work Commission and the Federal Court and Federal Circuit Court of Australia. It is important that parties are fairly represented in tribunals and courts and our team of lawyers approach advocacy with due diligence with the primary goal of achieving a positive outcome.
When terminating an employee – a General Protections claim is the most dangerous and problematic to defend.
Terminating the employment of a staff member is never a pleasant ordeal, most of the time employers and managers would have had a gut feeling or knew a lot earlier they wouldn’t work out – in the end firing an employee can be very messy. Most employers are concerned about unfair dismissal claims however, General Protections matters are by far the most dangerous claims.
A general protections claim can take many shapes and forms however the most common one is when an employee claims that there employer has taken adverse action against them such a terminating their employment or demotion for exercising a workplace right such as making a complaint regarding their pay or requesting flexibility for work hours.
In our experience we are seeing more of our clients deal with general protections claims and there a few reasons for this. The first major one is that there is a reverse onus of proof – namely in general protections matters an employer is presumed guilty until they can disprove otherwise. This can be quite difficult to do and clear evidence from the key decision maker will need to explain that the reason for why the adverse action – the firing for example was taken for a reason other than a prohibited one. That is, it wasn’t done because of a query from a employee regarding their wages, because they are a female, the employee is getting older or because they are a union member.
Secondly, although compensation can be awarded in these matters, penalties can also be awarded of up to $63,000 and more significantly an individual involved in the breach can be labile for up to $12,600. This is the scary thing, directors, managers, HR consultants, advisors and even accountants and CFOs can be held liable for being in breach of a general protections provision.
Also remember, in general protections claims, employees can make a claim whilst they are still employed.