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General Protections / Breach Of Workplace Rights

Under the Federal Fair Work legislation, an employer is prohibited from taking ‘Adverse Action’ against a worker because the worker has pursued a workplace right or engaged in legitimate industrial activity. These industrial rights are referred to as ‘General Protections’.

Adverse Action includes dismissal, discrimination, prejudice to the worker, injuring the worker in his/her employment, etc. It also includes altering the position of the worker to the worker’s detriment. It can also involve failing to give a worker a promotion. Of course, not all ‘Adverse Actions’ are unlawful – an employer may have a perfectly reasonable excuse for dismissing a worker, demoting them or choosing not to promote them, etc.

A worker may be able to pursue a General Protections claim if they can demonstrate that the Adverse Action occurred because the worker pursued a certain workplace right or for certain other discriminatory reasons. For example if a worker is demoted because he/she raises legitimate work, health and safety concerns, or a worker is sacked for engaging in protected industrial activity, then they should be able to successfully mount a General Protections claim.

An employer will usually attempt to defend a General Protections claim by alleging that the reason for the Adverse Action against the employee was due to non-discriminatory reasons, including allegations of misconduct or poor performance. This can make these types of claims highly stressful and complex.

Strict timeframes apply to pursuing these types of claims. A worker only has 21 days to initiate a General Protections claim following the adverse action, so it is imperative that a worker seeks legal advice without delay in order to protect their legal interests. Even if a worker is technically unable to pursue a General Protections claim, there are often alternative legal avenues that can be explored.

If the General Protections breach results in the termination of a worker’s employment, advice should be sought regarding whether it is more appropriate to pursue a General Protections claim or an Unfair Dismissal claim – a worker is legally prohibited from pursuing both types of claims simultaneously.

At Websters, our team of specialised Industrial Lawyers work with numerous clients as they navigate difficult General Protections claims. If you believe you have been subjected to discrimination or victimisation because you pursued a workplace right, you should contact us without delay.

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*Please note: Websters lawyers is a South Australian based law firm, handling matters exclusive to South Australia, with offices located in Adelaide, Ridgehaven and Smithfield.

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