Employment Lawyers

What is a General Protections claim?

All persons working in Australia are entitled to general workplace protections. Some of the general protections provided in the Fair Work Act 2009 include workplace rights, the right to engage in industrial activities, right to be free from unlawful discrimination, the right to be free from undue influence or pressure in work places.

These rights are protected from certain unlawful actions such as adverse action, coercion, misrepresentation, unfair dismissal etc. General protections are important to regulate the conduct of such adverse action by an employer against employee.

A general protection claim refers to an action taken by a person whose rights under the general protections have been infringed. There is no minimum employment period for lodging such claim.

There two general protection disputes:

• General protections dismissal disputes; and
• General protections non-dismissal disputes.

It should be noted that a general protections dismissal dispute cannot be heard by a court without both parties attempting to resolve the issue at a conciliation mediated by the Fair Work Commission. (Commission). If the dispute is not resolved at such conciliation, the Commission will issue a certificate and the party can chose to make an application to court within 14 days of such certificate being issued.

If the claim involves an adverse action against a person (not involving dismissal), such as being demoted, or being denied a pay increase, harassment due to political opinions etc, then such person can chose to make an application to the Commission or make an application to court. Such application can be lodged at the Federal Court or the Federal Circuit Court and should be lodged within 6 years from the date of the alleged adverse or unlawful conduct.

What is Constructive Dismissal?

Constructive dismissal refers to a resignation where an employee feels that they have no choice but to leave their place of work because of poor work conditions, bullying and harassment, underpaying, poor treatment etc. This could also refer to situations where they have been offered a resignation instead of a termination and have no recourse but to take it.

The Fair Work Act 2009 provides that a person will be deemed to have been unfairly dismissed if “the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer”.(section 386(1)(b)).

A few examples of constructive dismissal include:

• An employer expressly suggesting that the employee resign;
• An employer actively making it very difficult for the employee to fulfill the duties and responsibilities of their role;
• An employer enforcing a performance management plan that is designated to fail;
• An unsafe or unhealthy work environment which could have serious impact on the employee’s wellbeing; or
• Pay cuts, demotions, changing work hours, changing employee’s passwords or access codes, failure to act against co-workers/supervisors who harass, bully or discriminate against the employee.

It must be proved by the employee when bringing an action against an employer for constructive dismissal that the employer’s conduct was the principal contributing factor to which led the employee to resign, as they had no other option.

What is a restraint of trade clause?

A restraint of trade clause is a clause that could be included in an employment contract which limits employees from working for prospective employers who may be direct competitors of their current employer. Employers often use these clauses as an attempt to protect their business interests or trade secrets. Some clauses may seek to prevent employees from starting up competing businesses for a set period or within a specific location.
Restraint of trade clauses typically operate for a particular period, such as three months six months, or twelve months after the termination of an employment contract and within a geographical area in proximity to the employer’s place of business.
A restraint of trade clause will be enforceable only if the court deems it is reasonable. An employer cannot rely on a restraint clause where the employee has deemed to be constructively dismissed. Restrictive clauses are not an essential component in employment contracts because there is an inherent protection regarding confidential information.