In August Qantas was hit with a record $90 million penalty for breaching the general protections provisions of the Fair Work Act. The RMB Workplace and Employment Law Division explains the implications for small or medium-sized businesses (SMEs).
A claim for adverse action (also known as general protections) is a claim that an employer took some unlawful action (such as termination) for a ‘protected reason’, such as the exercise of a workplace right (like taking leave); or to prevent the exercise of a workplace right (such as a right to have long service leave crystallise at 10 years).
In this case, Qantas unlawfully sacked 1820 staff to outsource its work.
For most of us, $90 million is unfathomable. And let’s be honest, this case involved 1820 employees, conduct by a listed company and one of Australia’s most recognisable brands.
If you’re running an SME it can be hard to see how this is relevant to you.
However, judgments like this are helpful as an insight into how the courts think, and the factors that actually matter when penalties are being set. While the dollar figure may be out of reach, the principles are not.
Here are three clear lessons every employer can take away:
1. The Fair Work Act protects future rights, not just existing ones.
If an employee’s entitlement (like long service leave) is about to crystallise, you cannot let that influence your decision-making. Terminating someone because they’re about to qualify is just as unlawful as terminating them because they already qualified.
2. Document everything, all the time, contemporaneously.
I keep a record of every conversation I’ve ever had. Want to know what I discussed in February 2019? Give me 20 seconds.
Why? Because contemporaneous notes are always stronger than trying to reconstruct history after the fact. If you end up in court, having evidence of why you made a decision at the time will serve you far better than explanations prepared later.
3. If you’ve been caught out, don’t double down.
If you’ve made a mistake, acknowledge it. Take accountability. Trying to spin the facts will only make things worse.
Qantas was chastised for running what the court called a “false narrative”, which was contradicted by documents already before the court. The lesson? Don’t lie.
All this matters because general protections claims are riskier than unfair dismissals. Many employers only learn this the hard way when an F8 claim form lands on their desk.
If you're a small or medium-sized businesses (SMEs) owner and are concerned about any employment or workplace matters, your first step should be to contact our office to arrange a consultation. You can contact us by by phone or our 'Ask a Question' tool on our website.