Have any of your employees made a complaint or inquiry about matters connected to their employment? If so, seek advice and proceed very cautiously if you are considering dismissal of that employee.

General Protections Under the Fair Work Act

Most retail employees in Australia can rely on a system known as ‘General Protections’ under the Fair Work Act 2009 (Cth). One way that employees can use this system is to challenge a business’ decision to dismiss them from employment. In such claims, the employee alleges that their employment was terminated because they exercised a workplace right. One of many workplace rights that employees have is to make a complaint or inquiry about their employment.

What Constitutes a Complaint or Inquiry?

The meaning of ‘complaint or inquiry’ is very broad. For example, it can be:

• A question about their rate of pay
• A report about a safety concern
• Concerns about how a customer has treated them
• Many other employment-related issues

Legal Consequences of Dismissing an Employee for Making a Complaint or Inquiry

It is unlawful for an employer to take ‘adverse action’ (such as dismissing them from employment) because an employee has made a complaint connected to their employment.
Unlike with unfair dismissal cases, there is no minimum waiting period before the employee can start this type of legal proceeding. Although, the employee must make such an application within 21 days of their employment ending.

The Burden of Proof in General Protections Cases

Unlike in most legal proceedings, the employee does not need to prove the claim. The employee’s allegation that they were dismissed because of a prohibited reason in a General Protections case is presumed to be true and it is necessary for the employer to then disprove the allegations through a successful defense.

Potential Outcomes if the Employer Loses the Case

The Court has broad discretion in determining a suitable outcome if the employer loses the case. This may include:

• Reinstating the employee in their former position
• Ordering compensation
• Ordering penalties (which can be as high as $99,000 per contravention)
   

Seek Advice Before Taking Action

General Protections are a complex area of employment law and MGAIBA’s employment lawyers are highly experienced in this area and regularly represent members dealing with these types of matters. If you are considering dismissing an employee who has made a complaint or inquiry, seek advice from us first.

This article provides general information only and should not be considered legal advice. If you need assistance, contact our Employment Advisory team at 1800 888 479.