Boss yelling at employee for missing deadline, bad work results

General Protections claims – beware of personal liability

It has been more than 8 years since the Fair Work Act 2009 (Cth) (the Act) came into force, however many business owners and senior managers are unaware of the existence and effect of the “General Protections” regime contained in Part 3-1 of the Act.

Part 3-1 of the Act provides protection of a person’s workplace rights. Employers can find themselves in contravention of Part 3-1 if they engage in conduct that amounts to “adverse action” being taken against an employee. Adverse Action includes (but is not limited to) the dismissal of an employee, injuring an employee in their employment, altering the position of an employee to the employee’s detriment or an employer discriminating between employees.

We have seen an increasing trend with applicants in General Protections matters bringing claims not only against their employer but also against the employer’s owners and directors – even line managers and supervisors – personally.  These individuals often do not initially appreciate that they are being sued personally.

Typically the first question that we are asked by individuals who have been personally joined to a General Protections claim is: “I am not the employer so how can this person be suing me?”

The answer is found in s.550(2) of the Act, which states that an individual person is involved in (and can therefore be liable for) a contravention committed by another party where that person has:

  1. aided, abetted, counselled or procured the contravention; or
  2. induced the contravention, whether by threats or promises or otherwise; or
  3. been in any way, by act or omission, directly or indirectly, knowingly concerned in or party to the contravention; or
  4. conspired with others to effect the contravention.

Often individuals who have been joined as a party to a General Protections matter have done none of the above things and have been joined as a party merely to provide a strong incentive to settle the matter as quickly as possible. Despite this, involvement in the matter personally is not trivial and can incur significant personal time, effort and expense.

It is very important that managers at all levels within a business are aware of Part 3-1 of the Act and that they tread carefully whenever a substantial change is proposed to the terms upon which an individual employee is engaged. Middle managers in particular need to be aware that “just doing what senior management wants” could result in a disgruntled employee suing them personally.

When looking to resolve employment law matters, prevention is the best cure.  If you have a query relating to any of the information in this article, or you would like to speak with a lawyer in Coleman Greig’s Employment Law team with regard to difficulties that you’re having with regard to the management of an employee, please contact us prior to taking any significant steps so that you can avoid potentially creating a bigger problem.

Share:

Send an enquiry

Any personal information you provide is collected pursuant to our Privacy Policy.

Categories
Archives
Author

More posts

Elisha v Vision Australia Limited 2024

What happens where an employer ‘botches’ an investigation and dismissal process? A recent High Court case has shed some light…and provides a useful reminder about the importance of following due process.

The New Scam Prevention Framework and It’s Impact on Businesses

Many amendments to the Privacy Act stemming from changes to strengthen privacy protections for all Australians are now in force. However, the Privacy and Other Legislation Amendment Act 2024 has attracted some criticism from businesses – particularly in relation to its statutory tort.

Who gets to keep “Max?”

For many, our animals have a special space in our hearts. So, it should be no surprise that It isn’t uncommon for a Judge to be asked to decide who keeps a beloved pet following a relationship breakdown.

Closing the loop – Criminalisation of intentional wage underpayments

Employers are gearing up for a run of public holidays. Provisions requiring an employee to work on a public holiday in certain circumstances have been commonplace and not overly concerning. However, the Federal Court recently held that such a provision contravened the National Employment Standards.

© 2024 Coleman Greig Lawyers  |  Sitemap  |  Liability limited by a scheme approved under Professional Standards Legislation. ABN 73 125 176 230