Recently our local Gold Coast Lawyers have noticed a significant increase in the rise of Fair Work disputes and specifically, general protection claims. Likely an effect of the unstable economy a general protection claim can be a costly claim against an employer commonly brought following dismissal of an employee.
Under the Fair Work Act 2009 (the Act) the general protection provisions aim to protect workplace rights, freedom to engage in industrial activities and protections from workplace discrimination.
A general protection application to the Fair Work Commission may be made by a prospective employee, independent contractor or a person who has entered into a contract for services. To establish the action, the employee must be able to prove the following elements:
1. there was adverse action taken, threatened or organised against the employee;
2. there was a right that was breached by that action or potential action; and
3. there was a document that provided that right, for example, the relevant workplace law, award, agreement or contract of employment.
The Fair Work Act provides that when a general protection application is brought, the onus of proof rests upon the employer. This means that it is up to the employer to prove that the termination was not based on discriminatory grounds, for example.
If you are filing a general protection application that relates to termination, it must be filed within 21 days from the date of dismissal, (if dismissal took place after 1 January 2013).
Should you believe you have a general protection claim, or if you are an employer and would like information on the Fair Work Act and how it may affect you, please do not hesitate to contact one of our friendly Gold Coast Solicitors at Affinity Lawyers for further information.
