General Protections - What are they and why are they important

The concept of “General Protections” has created significant confusion amongst employers. Some are not even aware that they exist.
So what are they and what affect do they have on your business. Simply put, general protections are specified in the fair work act to protect the workplace rights of everybody who participates in the workforce. This includes employees, employers, independent contractors, unions and employer associations.
The legislation protects against all employees, employers and other members of the workforce from taking ‘adverse action’ against one and other. The notion of ‘adverse action’ is very important and needs to be understood to ensure parties don’t inadvertently breach another’s workplace rights. Adverse action is any conduct that disadvantages another person.
An example of an adverse action taken by an employer includes:

  • Threatening to terminate employment without due cause.
  • Not acting on bullying or discrimination
  • Injury at work
  • Unreasonably refusing to allow employees to take holidays
  • Discriminating against someone due to ill health.

An example of an adverse action taken by an employee includes:

  • Ceasing to work for their employer without due notice
  • Not working to specified requirement and standard
  • Industrial Actions
  • Discriminating against other employees.

Case Study

A recent example was a case where an employer had every right to conclude that their general protections had been breached by an employee who, they believed, had deliberately sabotaged a database. However, they had no proof. The employer advised the employee that they would investigate the matter to the fullest extent possible and in the same communication advised that they would issue a “second warning”.
Technically, the second warning without due cause was a breach of the employee's general protections and, as it was in writing, the employee had proof! If the employee had resigned at that point of their own accord, they could have strongly argued unfair dismissal as their general protections had been breached. Conversely, if the employer had taken the time to accumulate proof, then they could have summarily dismissed the employee for gross misconduct. Alternatively, as the employee was underperforming, the employer could have counselled the employee out using the performance management mechanisms.

So what to do – how do you protect your business?

The important element here is act fairly and reasonably by enacting appropriate policies and procedure which govern how different scenarios are addressed. A disciplinary procedure, when followed correctly can provide the necessary mechanisms to remove an employee breaching their terms of employment; a grievance policy can provide the necessary mechanism for an employee or employer to raise concerns about workplace rights being breached; whereas a performance management policy can also provide mechanisms to, not only help staff perform optimally, but also manage out those staff who are not performing in accordance with their job specification. See Performance Management.