How are workplace rights protected?

The Fair Work laws protect workplace rights.  If an employer takes adverse action against an employee because they exercise a workplace right, or to stop them exercising a workplace right, the employee can make a “General Protections Application” to Fair Work Australia.

The scope of this is very wide – it applies to all employers, large and small – and it can give employees a remedy where none would otherwise exist.

For example, an employee cannot take a claim for unfair dismissal unless they have worked for an employer for a certain period of time (6 months for large workplaces and 12 months for small workplaces.)  But if the employer dismisses the employee for exercising a workplace right (for example asking for flexible work arrangements when they have the care of children, or making a complaint about bullying and harassment), this can be seen as an “adverse action” and the employee can make a complaint  to Fair Work Australia and potentially take court action.

Adverse action is not just dismissal, it can include things like putting an employee on a performance management plan, reducing their hours, or demoting them.

Once the employee establishes that there has been an adverse action, it is up to the employer to prove that it was not because of the exercise of a workplace right.

These claims are becoming increasingly common.  The damages the employee can recover are not capped, and can include damages for hurt and humiliation.

There is a strict time limit of 60 days if the adverse action is dismissal, so employees need to act promptly.  Employers need to be aware of their obligations under this law, and make sure that their genuine attempts to manage poor performance cannot be seen to infringe this law.

Affording Justice provides advice to employees and small business employers about their rights in this situation.