Understanding General Protections Claims and workplace complaints under Section 340 of the Fair Work Act: A Simplified Guide for Employees
No doubt you will be aware that in Australia many employees have the ability to pursue an unfair dismissal claim provided that they meet the eligibility requirements under the Fair Work Act (or the State equivalent Industrial Relations Act).
What you probably don’t know too much about though is that likewise, many employees have the ability to pursue what is called a General Protections claim.
If you find yourself in a situation where your employment has been abruptly terminated by your employer, you may be wondering what the best form of legal recourse is. While the answer to that question is logically “it depends”, it is helpful if you have a solid understanding of what a General Protections claim entails.
In this blog we will only be focusing on general protections claims under section 340 of the Fair Work Act. If you would like to read more about the key differences between an unfair dismissal claim and a general protections claim, check out our earlier blog Unfair Dismissal vs General Protections – What’s the Difference and Which is Better?
We’ll break down what a General Protections claim under section 340 of the Act means in simple terms and explain what employees must argue to run such a case.
What is a General Protections Claim?
In the simplest terms, a General Protections claim is a legal action you can take if you believe your employment rights have been violated. It’s a way to seek remedies when your employer has taken adverse action against you because you exercised a workplace right.
What does a claim under section 340 of the Act involve?
Pursuant to section 340 of the Act, it is unlawful for a person (or employer) to take “adverse action” against you because you have a “workplace right” or because you have or propose to exercise your workplace right in some way. It is also unlawful to take adverse action against you as a means to prevent you from exercising your workplace rights.
What is a workplace right?
A person has a workplace right if they:
- are entitled to the benefit of a workplace law, workplace instrument or an order made by an industrial body
- has a role or responsibility under a workplace law, workplace instrument or order made by an industrial body
- is able to initiate or participate in a process or proceedings under a workplace law or instrument
- is able to make a complaint or inquiry to a person or body with capacity to seek compliance with a workplace law or instrument, or
- is able to make a complaint or inquiry in relation to his or her employment.
In this blog we will focus on workplace rights as a complaint or inquiry made in relation to your employment.
What does it mean to make a workplace complaint or inquiry in relation to your employment?
A complaint that an employee is able to make in relation to his or her employment is not at large, but must be founded on a source of entitlement, whether instrumental or otherwise (for example: in a contract of employment, position description, policy or procedure, or in a workplace law).
Here are some examples of what a workplace complaint or inquiry in relation to your employment might look like:
- You are being underpaid and you make a complaint to your boss and ask that the underpayment be rectified;
- You make a request to take parental leave in accordance with your employer’s leave policy;
- You give your employer a medical certificate advising that you are unwell and cannot make it to work on a particular day
What is Adverse Action?
To run a General Protections claim alleging that you have been treated unfairly because you made a workplace complaint or inquiry, you need to demonstrate that your employer took “adverse action” against you “because” of that complaint or inquiry .
Adverse actions can take several forms, such as:
- Termination: Being fired, laid off, or not having your contract renewed.
- Demotion: Being moved to a lower position or having your responsibilities reduced.
- Discrimination: Being treated unfairly or differently based on a protected attribute like your race, gender, age, or disability.
- Harassment: Suffering bullying or mistreatment at work as a result of a protected action.
- Deprivation of entitlements: Facing pay cuts, reduced benefits, or other financial losses because of your complaint or inquiry
Adverse action includes threatening to take such action.
Using the same illustrations cited above, here are some examples of adverse action.
- You are being underpaid and you make a complaint to your boss and ask that the underpayment be rectified and because of this your employer demotes you and takes duties off you.
- You make a request to take parental leave in accordance with your employer’s leave policy and because of this your employer discriminates against you on the basis of your pregnancy;
- You give your employer a medical certificate advising that you are unwell and cannot make it to work on a particular day and because of this your employer fires you.
What you must argue in a General Protections Claim under section 340 of the Act
To successfully run a General Protections claim pursuant to section 340 of the Act, you need to establish:
- That you had a workplace right as defined by section 341 of the Act
- You exercised, or proposed to exercise, your workplace right (such as by making a complaint or enquiry in relation to your employment);
- Because you exercised your workplace right in that way, your employer has taken adverse action against you; and
- You have suffered some form of loss as a result of that action (.e.g. loss of wages or emotional hurt, humiliation and distress).
It’s important to take note that it doesn’t matter if your employer had several reasons for taking adverse action against you and only one of those reasons was unlawful. To bring a General Protections claim, you only need to show that one of the reasons for dismissal was a breach of the relevant provisions of the Act.
How can Rubix Legal help?
If you recently made a workplace complaint or inquiry in relation to your employment and have been treated adversely as a result, it is important to seek legal advice promptly. In circumstances where your employment has been terminated you only have 21 days from the date your termination takes effect in which to bring a General Protections claim.
Bringing a General Protections claim can be a complex process. Our experienced employment lawyers can guide you through the process, assess your case, and help you understand your rights and options.
To find out more about the General Protections process, read: General Protections
General Protections – let’s get started…
If you would like to explore your rights to pursue a claim there are several ways that Rubix Legal can help.
- You can book in for a complimentary 20-minute conference call to see if it looks like you have a case.
- You can book in for a 1-hour paid Legal Advice Consultation for a detailed and tailored discussion about your legal options and prospects.
- If your matter is more complex, you can book in for a 2-hour paid Legal Advice and Strategy Session.
- Already know you need ongoing assistance and representation? You can engage us to assist you with the preparation of your application, preparation for any conciliation conference or hearing or have us act on your behalf for the entire matter.
