Navigating the Minefield of General Protections Presented by: Jonathan Mamaril Principal NB Lawyers 07 3876 5111 jonathanm@nb-lawyers.com.au www.lawyersforemployers.com.au

About Jonathan Principal and Director of NB Lawyers, the Lawyers for Employers Leads and manage the Employment Law and Commercial law teams Unique experience includes work as an organiser, Industrial Officer and later, lawyer for the LHMU (now known as United Voice) www.lawyersforemployers.com.au/generalprotections/

General Protections – a Refresher Workplace Right Adverse Action Established casual link between the two Reverse onus of proof Discrimination Sham Contracting www.lawyersforemployers.com.au/generalprotections/

Accessorial Liability Personal liability by way of penalties can be sought Up to $10,800 for an individual Successful cases include: HR Managers HR Consultants Executives Directors CFO and CEO General Managers www.lawyersforemployers.com.au/generalprotections/

Why employees are favouring GP Claims? Compensation is uncapped (whereas in an unfair dismissal claim compensation is capped at 26 weeks’ salary); No minimum employment period as with unfair dismissal claims; No high income threshold as with unfair dismissal claims; The Applicant can be employed while making the claim; A reverse onus of proof applies; www.lawyersforemployers.com.au/generalprotections/

Why employees are favouring GP Claims? In first instance proceeds to FWC – Federal Court or Federal Circuit Court thereafter Where the matter goes before the Court, the following issues arise: Rules of Evidence apply; Requirement for lawyers (and potentially barristers) Costs escalate Various remedies available - reinstatement, injunction, compensation and penalties (up to $10,800 for an individual) www.lawyersforemployers.com.au/generalprotections/

Case Study Mary a Business Development Manager for Sonic Engineers was employed on 1 March 2017 Following a big storm on 4 March 2017, Mary did not turn up for work at 9.30am the following day Her supervisor, Jacob sent a text message to Mary informing her that her services were no longer required at 10.30am On 8 March 2017, Mary filed a General Protections claim against Sonic Engineers www.lawyersforemployers.com.au/generalprotections/

Case Study – Activity One person will be the HR Manager (Cheryl) and the other a Director (Linda) of Sonic: What issues have been uncovered? What are the risks to Jacob, Cheryl and Linda? Does it matter if the Employment Contract is signed or not? What other information (if any) need to be sourced? Would it matter if Mary was a contractor instead? Why or why not? What if Mary had made an unfair dismissal claim instead, would this make a difference? Mary claims the following: She was sick on the day she did not turn up for work On 1 March 2017 she had made an enquiry orally to Jacob about her entitlements to leave (she claims Jacob did not answer her) On 2 March 2017 she claims she was sent a text message by Jacob asking her if she “liked him” Mary’s written employment contract was not signed Jacob denies all allegations and simply says she was a “hopeless” employee www.lawyersforemployers.com.au/generalprotections/

Practical Measures When acting on directions communicate risk and liability recommendations in writing Seek further advice if needed (internal or external) Take contemporaneous notes of discussions Terms of reference www.lawyersforemployers.com.au/generalprotections/

Practical Measures Consider General Protections implications (not just unfair dismissal) Are there any protected attributes to consider? Do you have evidence? Are there any commercial considerations? www.lawyersforemployers.com.au/generalprotections/

Prevention Consider General Protections when hiring, managing and terminating employees Have policies and procedures and ensure management follow them Address employee complaints quickly Ensure clear verbal and written communication with staff to avoid misinterpretation Provide accessorial liability training for senior and middle management www.lawyersforemployers.com.au/generalprotections/

Could you be vulnerable to a general protections claim? NB Lawyers Could you be vulnerable to a general protections claim? Download more helpful resources at www.lawyersforemployers.com.au/generalprotections/ Presented by: Jonathan Mamaril, Principal Address: Level 3, 20 Park Road Milton Contact: (07) 3876 5111 Email: jonathanm@nb-lawyers.com.au www.lawyersforemployers.com.au