General Protections Claims and the Role of the Decision Maker Some lessons from Humpty Dumpty David Heldsinger, Rosemary Miller and Celeste de Saint Jorre1
INTRODUCTION 'When I use a word', Humpty Dumpty said in a rather scornful tone, 'it means just what I choose it to mean – neither more nor less'. 'The question is,' said Alice, 'whether you can make words mean so many different things.' 'The question is,' said Humpty Dumpty, 'which is to be master – that's all.'2 Lewis Carroll was the nom de plume for Charles Lutwidge Dodgson, a lecturer of mathematics at Oxford University.3 While Dodgson would have appreciated the precision and control inherent in mathematics, he was also an imaginative storyteller keenly aware of the power of persuasive narrative. Storytelling skills are equally important when preparing, controlling and directing the evidence presented to a Court to achieve the desired outcome. While this applies to all litigation, it is particularly pertinent to general protections claims in Part 3-1 of the Fair Work Act 2009 (Cth) (Act). These types of claims are fairly unusual in their operation, and if successful, can be highly damaging to an employer. The recent case of Construction, Forestry, Mining and Energy Union v Hail Creek Coal Pty Ltd [2016] FCA 199 (Hail Creek) is directly on point. In that case, Justice Reeves in the Queensland Registry of the Federal Court ordered the Defendant (a subsidiary of Rio Tinto) to pay its former employee, Mr Haylett, $1,272,109.41 in compensation, plus $24,625.84 in interest.4 Furthermore, the Defendant was ordered to pay a penalty of $50,000 directly to the plaintiff union, the CFMEU.5 To date, this is the single largest order for compensation made in a general protections claim. This article considers the important role of the evidence of the 'decision maker' (the key witness for the employer) in enabling the employer to discharge the reverse onus of proof6 that applies in general protections claims.7 WHAT ARE 'GENERAL PROTECTIONS' CLAIMS? The commencement of the Act (in part) on 1 July 2009 introduced a new umbrella group of rights called 'general protections', together with new
terminology, including phrases such as 'adverse action' and 'workplace rights'. Thought by many to be a set of novel and broad statutory causes of action, the general protections largely reflected the existing law such as the 'freedom of association' provisions in the Act's predecessor, the Workplace Relations Act 1996 (Cth). Although they have evolved since, the general protections provisions share a significant similarity with the former freedom of association provisions – namely, the presumption that the adverse action was taken because of the workplace right.
According to the Explanatory Memorandum to the Fair Work Bill 2008, 'workplace rights' are intended to "cover a broad range of benefits, roles and responsibilities"12 and this is clearly reflected in the legislation. 'Workplace rights' have a broad reach and cover 'contingent or accruing' rights to which an employee has 'an entitlement to the benefit' (such as long service leave), as well as immediate or contemporaneous rights, such as inquiring about employment conditions or making an informal complaint.13 Once a 'workplace right' under a 'workplace instrument' (such as an enterprise agreement or a modern award) has been established, an applicant must then be able to identify and establish an incident of 'adverse action' on the part of the employer. 'Adverse action' is defined in an exhaustive table under s342 of the Act. Examples of 'adverse action' include the dismissal of an employee, taking steps to injure them in their employment or reducing their working hours – essentially, any conduct which has an adverse or a deleterious effect on that employee and their employment. While employees have long been familiar with their ability to lodge claims against their employer on the grounds of unfair dismissal, the rate at which general protections claims are increasing is noteworthy. For example, between 2011 and 2015, general protection cases filed in the Fair Work Commission increased from 2,162 to 3,382 (an increase of 56%).14
Alice's encounter with Humpty Dumpty, Through the Looking-Glass.
Using the example of an employee making a claim against an employer, general protections claims operate as follows: 1. The employee exercises a 'workplace right' arising from a 'workplace instrument'.8 2. The employer takes 'adverse action' against that employee.9 3. The 'adverse action' is presumed to have been taken for a prohibited reason (i.e. the employee's exercise of the 'workplace right').10 4. The employer then has to prove that the 'adverse action' was not for a prohibited reason.11
General protections claims are usually initiated and conciliated in the Fair Work Commission. However, if conciliation is unsuccessful, the applicant must prosecute their claim further in either the Federal Circuit Court or Federal Court. There are also some differences in the way general protections claims proceed, depending on whether the claim involves a dismissal or not. THE 'REVERSE ONUS OF PROOF' AND THE KEY ROLE OF THE DECISION MAKER Once an applicant has established that 'adverse action' was taken against them subsequent to exercising a 'workplace right', a presumption arises under s361 of the Act that the 'adverse action' was 41