Much fanfare and controversy surrounded the introduction of the “general protections” under the Fair Work Act on 1 January 2010. This set of provisions still cause employers a great deal of angst. Perhaps more so since two employees have each been awarded in excess of $500k in two separate general protections decisions of recent times. Although the award of compensation and damages to the employees in both cases has been based on the employers’ multiple contractual and Fair Work Act breaches (of a persistent nature), these cases do shed some light on the harsh stance taken by Courts.
Photography / Oran Viriyincy
Murrihy v Betezy.com.au Pty Ltd [2013] FCA 908
Just as a refresher, broadly speaking, employers who take an “adverse action” against an employee because of that employee’s “workplace right” will be liable for a range of potential remedies (including uncapped compensation and fines). The Act states that an employee will have a “workplace right” if the employee is able to make a complaint or inquiry in relation to his or her employment.
In Murrihy v Betezy.com.au Pty Ltd [2013] FCA 908, Justice Jessup found that seeking legal advice about contractual entitlements did fall within the ambit of this section.
In this case, Ms Murrihy was in a managerial role and had not been paid commissions by her employer pursuant to her commission agreements for over 3 years. After speaking repeatedly with senior management in relation to this, she eventually informed the CEO that she would be seeking legal advice on the issue. The CEO not only threatened to dismiss her upon hearing this but after receiving a letter from her lawyer, he prevented her from accessing the company computer system and suspended her without pay. This was found by the Court to constitute adverse action taken because Ms Murrihy had exercised (or proposed to exercise) her workplace right – in seeking legal advice about her contractual terms.
Ms Murrihy was awarded in excess of $500,000 in compensation for unpaid wages, commissions, interest, damages and superannuation contributions. Although much of the compensation and damages in this case were attributable to the contractual and Fair Work Act breaches, the case certainly sends the following strong message to employers:
“An employee [without access to Union representation] should be able to have recourse to his or her solicitor, without the fear of repercussions in the nature of 'adverse action' taken by the employer."
Kassis V Republic of Lebanon [2014] FCCA 155
Ms Kassis was employed in the Lebanese embassy and after she discovered she was not being paid the amount which she had been promised, she asked questions. After she was married and refused the romantic advances of the Consul, she was harassed and intimated. She later complained about such conduct to the Embassy and Ambassador, before she was eventually dismissed. The Court found that the Republic of Lebanon took adverse action in dismissing her because of her workplace complaints, bullied, harassed and dismissed her because of her sex and marital status and dismissed her whilst she was temporarily absent on stress leave. Like Ms Murrihy, Ms Kassis was also awarded in excess of $500,000 by the Court (made up of compensation, super, interest and damages).
Given the Republic of Lebanon did not appear in this case and it was accepted that “employment in the Lebanese Foreign Service is for life” (for the purposes of determining compensation), this case is rather unusual. However that is not to say that employers should ignore the fact that the Courts are clearly not afraid to order large amount of money to victims of general protections violations.
If your business needs advice on the general protections provisions, contact THE WORKPLACE.
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