Yes, an employee must lodge a general protections claim within 21 days of the termination of their employment. It’s important to act promptly if you receive notice of a claim to ensure you meet all required deadlines.

While both types of claims involve the termination of employment, they differ in scope and potential outcomes:

General protections claims can be brought by any employee regardless of their length of service or salary and can result in uncapped compensation. In general protections claims, an employee must demonstrate that adverse action was taken against them because they exercised a workplace right. An employer must then demonstrate that they did not treat an employee adversely for a prohibited reason. 

Unfair dismissal claims require an employee to be employed for a minimum period and is subject to a cap on compensation. In unfair dismissal claims, an employee must demonstrate that their dismissal was harsh, unjust, or unreasonable. 

Prevention is key to avoiding costly and time-consuming claims. Employers can take several proactive steps:

1. Training and Awareness: Ensure that all managers and decision-makers are aware of employee rights under the Fair Work Act and understand the importance of not taking adverse action for unlawful reasons.

2. Clear Policies: Maintain clear, well-documented workplace policies that outline acceptable behavior and the process for handling disputes.

3. Fair Treatment: Treat all employees fairly and consistently, and ensure that any disciplinary actions are based on legitimate business reasons.

Adverse action includes a wide range of employer behaviors, such as:

1. Dismissal of an employee.

2. Injury to an employee in their employment (e.g., reducing their pay).

3. Altering the employee’s position to their detriment (e.g., demotion).

4. Discrimination against the employee compared to others.

Adverse action can also occur if an employer refuses to employ a prospective employee due to a protected attribute or because they have exercised a workplace right.

If the Fair Work Commission or a Court find that an employee has been treated adversely because they exercised a workplace right, then the primary remedy in this jurisdiction is compensation. Unlike claims for unfair dismissal, compensation in general protections matters is not subject to a cap. This means that the court has the discretion to award damages covering a broad spectrum of losses, including but not limited to, future economic loss, hurt and humiliation, pain and suffering, and general damages.

In addition to compensation, the court may impose civil penalties on an employer who has contravened the general protections provisions. These penalties are designed to enforce compliance with the Fair Work Act and deter future breaches.

It is also important to consider the potential reputational impact on an employer resulting from a published Federal Circuit Court decision. A finding of adverse action against an employee can have significant consequences for an employer's brand and public image, potentially affecting its standing within the industry and the broader community.

Employers are thus advised to handle general protections matters with diligence and to seek legal guidance to mitigate the risk of adverse findings and the associated financial and reputational repercussions.

We strongly recommend consulting with one of our experienced employment lawyers before dismissing an employee to mitigate the risk of a general protections claim or any other potential claim. Additionally, if you plan to take action against an employee who has previously made a complaint regarding their employment, it is crucial to seek our advice. Keep in mind that employees can file general protections claims while still employed. At Bentham Sydney Employment Lawyers, we have a proven track record of resolving general protections claims before they proceed to a hearing and excels in defending such claims at hearings.