Adverse Action Scenarios
Recently our office has received numerous calls from individuals who have been dismissed from their employment and are unsure to lodge an Unfair Dismissal Claim and or a General Protection Order Claim.
A simple answer is that Unfair Dismissal claims are a “ short term “ “ quick fix “ solution where on occasions employees with very sound cases are pressured into early settlement.
Whereas a General Protection Claim (GPC) outlines serious breaches of workplace laws , modern awards ( e.g underpayments, non payment of superannuation ) and OHS laws re: providing a safe workplace.
Furthermore a Genera Protection Claim enables the aggrieved individual to claim numerous heads of damages not limited to reinstatement , compensation and reasonable notice and pain / suffering in limited circumstances.
Accordingly we recommend individuals to be informed of their employment rights and take time to plan what form of action is appropriate for them.
Some typical scenarios where an individual has been subjected to an Adverse Action and may consider lodging a General Protection Claim ?
Q : I was employed for a company for just over one year , suffered a work place injury (lower back whilst lifting) in May 2011 and was dismissed some 4 weeks later whilst still on workers compensation, What claim do you recommend I lodge ? Graham, Albury Wodonga.
A: My recommendation will be to consider lodging a General Protection Claim because it seems you were dismissed because of a workplace right, namely your right to apply and receive workers compensation whilst injured. On occasions employers do become irate when employees are injured and comments like “ a broken leg takes less time to heal than a sore back “ is very common. Nevertheless an Employer’s obligation is only to assist the Employee to lodge a workers compensation claims and ensure a safe return to full time work. In the instance that you have been terminated within two months of the injury this is unfortunate but highlights a complete disregard by your employer of your work place rights.
Q: I have been working for my Employer for over four years , regularly work overtime without any reward and recently I asked my boss “ why don’t we get paid overtime “. My boss explained “ that is the way it is, if you do not like it you can leave”. Regrettably after four weeks I was dismissed and my boss said “ it was because of a shortage of work “. What do I do ? Joanne, Chullora , Sydney.
A : Dear Joanne, your scenario regular occurs in many workplaces and various employees completely disregard their industrial and legal obligations to pay overtime and allowances. I am sure if you lodge a GPC your employer will maintain there was a genuine shortage of work and will dispute the termination was linked to your questioning re: overtime. Furthermore, Joanne if you were the only employee dismissed and your company has brought in outside hire, it seems you were dismissed because of you asserting your workplace right. Thereby , do not hesitate and consider lodging a General Protection Order Claim.
Q: Dear Jake, I have been working in a warehouse logistics business for about eight months and being female the majority of employees have been very supportive. However my boss, has constantly questioned me about my private life, what I do outside of work, who I hang out with and even making comments about my cultural background. Recently I made a serious written workplace complaint to his boss and attended various meetings with the senior manager and the owner of the company. The owner said, “ your boss does it because of his admiration for you and wanting to help you”. I explained “ what he did was way beyond his employment obligation and he constantly made my work atmosphere unpleasant and put me down infront of staff “ . Unfortunately nothing was resolved and the owner said,” we will sort something out “. Regrettably after two weeks of making the complaint I was dismissed on the grounds of redundancy. What can I do, Sarah, Gosford.
A: Dear Sarah, This may be a classic case of workplace bullying , your termination seems intrinsically linked to your workplace complaint and namely the Employer did not provide a safe workplace. Unfortunately you will be barred from lodging an unfair dismissal claim because of the so called “ genuine redundancy “. Please have no hesitation in lodging a General Protection Order Claim , and Connect Legal can assist by preparing your application and submissions. Please also note you have 60 days to lodge your General Protection Claim from the date of termination.
Q : Dear Jake, My husband was sacked from his job because he complained to management on at least three occasions that the truck he was driving had bold tyres and it was unsafe? Sue, Prestons
A: Dear Sue, Your husband has a right to lodge either an unfair dismissal and or general protection claim. What avenue he decides depends on length of service, whether he worked for a small and or large organization and or the reason he was dismissed.
Accordingly if you believe you have been dismissed because of asserting your workplace right , please do not hesitate to contact Jake Boghossian of Connect Legal to discuss your personal circumstances.
Please also consider carefully how and when you lodge your General Protection Claim because the matter will proceed out of Fair Work Australia in a very timely manner and into the mainstream courts for prosecution.