This is a powerful type of claim, and it works differently from unfair dismissal. Worth a short call to see if it fits. Call 1800 UNFAIR (1800 863 247). The first call is free, with no obligation.
The basic idea
An employer must not take adverse action against you because you have, or have exercised, a workplace right.
Adverse action includes dismissing you, but also injuring you in your employment, altering your position to your disadvantage, or discriminating between you and other employees. It is not limited to being sacked.
A workplace right includes things like:
- making a complaint or inquiry about your employment
- being entitled to a benefit under a workplace law, award, or agreement
- taking leave you are entitled to, such as personal or sick leave
- asking to be paid correctly
- raising a safety concern
If you did one of these things and were then punished for it, that is the heart of an adverse action claim.
Why this claim is powerful: the reverse onus
Here is what makes general protections different from unfair dismissal.
Normally, the person making a claim has to prove their case. In an adverse action claim, once you show that adverse action was taken and allege it was because of your workplace right, the law presumes your employer acted for that reason, unless the employer proves otherwise.
In other words, the burden flips. Your employer has to prove that your complaint, or your leave, or your safety concern was not a reason they dismissed you. That is a real hurdle for an employer, and it is difficult to clear without the actual decision-maker giving evidence about why they acted. It is a big part of why these claims settle.
No compensation cap
Unlike unfair dismissal, there is no set cap on compensation in a general protections claim, and compensation for distress can be available. That does not mean payouts are large, settlements are often modest, but the absence of a cap and the reverse onus together make this a serious avenue.
One important limit
There is a trade-off you need to understand up front. If a general protections dismissal claim does not resolve at the Fair Work Commission, it proceeds to court. A paid agent can represent you at the Commission, but cannot represent you in court. If your matter looks like it may end up there, we will tell you honestly and point you to a lawyer. See do I need a lawyer.
The 21 day deadline
If the adverse action was your dismissal, you generally have 21 days from when it took effect to lodge. If it was not a dismissal, the timeframe is different.
Find out if you have a claim
Whether what happened to you counts as adverse action, and whether it is the right claim to run, turns on what your workplace right was and how it connects to what the employer did. That is worth talking through properly.
Call 1800 UNFAIR (1800 863 247). The first call is free and there is no obligation. Monday to Friday 9am to 9pm, weekends 9am to 5pm.
We are paid agents, not lawyers. We represent employees at the Fair Work Commission and we will give you a straight answer about your options.