QHA_Review March_2021

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EMPLOYMENT RELATIONS with Joanna Minchinton BE AWARE OF FAIR WORK COMMISSION GENERAL PROTECTIONS! QHA REVIEW | 48 Most employers would be aware of the jurisdiction of the Fair Work Commission (‘FWC’) to hear unfair dismissal applications (‘UFD’) lodged by employees post their dismissal. This avenue is available for an eligible former employee who believes that the termination of their employment was unfair. With regard to termination of employment, the FWC can also hear general protections applications lodged by employees that have been dismissed. The main difference between the unfair dismissal and the general protections application is the basis for the claim. A UFD is made where a former employee feels that the termination was unfair, that is, it was harsh, unjust or unreasonable. A general protections (‘GP’) application can be about a range of matters – that resulted with termination of the employee’s employment. More commonly, a former employee will lodge a GP application on the basis the employer has taken adverse action against the employee (the adverse action being the termination of employment) because the employee has a workplace right. This article will focus on what a workplace right is, and why, as an employer, you need to be aware of it. Workplace Right Section 341 of the Fair Work Act 2009 (‘Act’) states that a person has a workplace right if the person: “(a) is entitled to the benefit of, or has a role or responsibility under, a workplace law, workplace instrument or order made by an industrial body; or (b) is able to initiate, or participate in, a process or proceedings under a workplace law or workplace instrument; or (c) is able to make a complaint or inquiry: (i) to a person or body having the capacity under a workplace law to seek compliance with that law or a workplace instrument; or (ii) if the person is an employee--in relation to his or her employment.” A typical example of a workplace right being exercised is when an employee contacts the Fair Work Ombudsman (‘FWO’) to query their rate of pay, or other entitlement as per a workplace instrument e.g. an award or enterprise agreement. If, when the employer becomes aware of the employee’s query, they decide to terminate the employee because of the query being made, the employer’s action may be viewed as adverse action – giving rise to a GP application. GP Applications – No Exclusions Exist Employers will know that not every employee can lodge a UFD. This is because there are certain exclusions written into the Act, such as that an employee must complete the Minimum Employment Period (‘MEP’). No exclusions exist with GP applications. This is an important thing to know. An employee can lodge a GP application even if they have only been employed for 1 week. The MEP exclusion for a UFD does not apply for a GP application. Reverse Onus of Proof Employers need to address these claims with great caution as there is a reverse onus of proof. What that means is that an employer will be found to have taken adverse action (a GP contravention as per the Act) unless the employer can disprove the allegation that has been on the balance of probabilities. In other words, the employer is guilty until proven innocent. Using the above example of the employee exercising a workplace right to make a query about their employment conditions to the FWO, the employer in that situation would need to convince a Court that they did not terminate the employee for that reason. The GP Application Process Upon receipt of a GP application, the FWC will notify the employer in writing by email that the former employee has lodged an application, attach a copy of the application and set down a date and time for the conciliation teleconference. The FWC will then allow the employer seven days to provide a response in the required format. If the matter cannot be resolved at conciliation, the matter will be dealt with by way of a hearing. If the employer and the employee agree, the matter can be heard by the FWC. However, if one or both parties do not agree for the FWC to hear the matter, the
EMPLOYMENT RELATIONS employee can make an application to the Federal Court of Australia or Federal Circuit Court of Australia (‘the Court’). If the employer is found to have contravened the Act, and they took adverse action against the employee, the FWC or the Court may grant an Order against the employer, including an Order for the employer to make a payment of compensation to the employee. Unfortunately, the level of compensation is not capped in this jurisdiction. This is another key difference with UFDs as compensation is capped in that jurisdiction. The other Orders the FWC may grant are as follows: • reinstating the employee to their former employment with the employer; • payment of an amount by the employer to the employee for remuneration lost; • maintain the continuity of the employee’s employment; and/or • maintain the period of the employee’s continuous service with the employer. The Orders the Court may grant are as follows: • granting an injunction, or interim injunction, to prevent, stop or remedy the effects of a contravention; • award compensation for loss that the employee has suffered because of the contravention (which can include interest); • reinstate the employee to their former employment with the employer. Upon application the Court may also issue a penalty against the employer for the contravention of the Act itself. Here's cheers The QHA Podcast LISTEN IN TO THE BACKSTORY BEHIND THE INDIVIDUAL SUCCESS STORIES, THE LATEST PRODUCT RELEASES AND EVEN GET TO KNOW THE DECISION-MAKERS THAT IMPACT OUR INDUSTRY STARTS THIS MARCH, LISTEN ON Need Help? QHA members seeking more information or wishing to discuss a specific employment relations matter are encouraged to contact the Employment Relations Department for a confidential discussion by calling 07 3221 6999 or emailing er@qha.org.au. YOU CAN ALSO LISTEN AT QHA.ORG.AU
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