1. Navigating the Minefield of General Protections
Presented by:
Jonathan Mamaril
Principal
NB Lawyers

2. 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)

3. General Protections – a Refresher
Workplace Right
Adverse Action
Established casual link between the two
Reverse onus of proof
Discrimination
Sham Contracting

4. 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

5. 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;

6. 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)

7. 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

8. 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

9. 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

10. 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?

11. 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

12. 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
Presented by: Jonathan Mamaril, Principal
Address: Level 3, 20 Park Road Milton
Contact: (07)