Navigating the Minefield of General
Protections
Presented by:
Jonathan Mamaril
Principal
NB Lawyers
07 3876 5111
[email protected]
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/
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General Protections – a Refresher
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Workplace Right
Adverse Action
Established casual link between
the two
Reverse onus of proof
Discrimination
Sham Contracting
www.lawyersforemployers.com.au/generalprotections/
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Accessorial Liability
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Personal liability by way of penalties can
be sought
Up to $10,800 for an individual
Successful cases include:

HR Managers
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HR Consultants

Executives
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Directors

CFO and CEO
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General Managers
www.lawyersforemployers.com.au/generalprotections/
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Why employees are favouring GP Claims?
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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/
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Why employees are favouring GP Claims?

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In first instance proceeds to FWC – Federal Court
or Federal Circuit Court thereafter
Where the matter goes before the Court, the
following issues arise:
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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/
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Case Study
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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
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Case Study – Activity
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
One person will be the HR Manager (Cheryl)
and the other a Director (Linda) of Sonic:
1.
2.
3.
4.
5.
6.
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?
www.lawyersforemployers.com.au/generalprotections/
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Practical Measures
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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/
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Practical Measures

Consider General Protections
implications (not just unfair dismissal)

Are there any protected attributes to
consider?
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Do you have evidence?
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Are there any commercial
considerations?
www.lawyersforemployers.com.au/generalprotections/
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Prevention
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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
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NB Lawyers
Could you be vulnerable to a general protections claim?
Download more helpful resources at
www.lawyersforemployers.com.au/generalprotections/
Presented by:
Address:
Contact:
Email:
Jonathan Mamaril, Principal
Level 3, 20 Park Road Milton
(07) 3876 5111
[email protected]
www.lawyersforemployers.com.au
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