When an employee alleges experiencing discrimination at work and wishes to pursue a legal remedy, the employee has a variety of options available to them. Two of those options are a discrimination claim under Federal or State anti-discrimination law or recourse under the general protections provisions of the Fair Work Act 2009 (Cth) (the “FW Act”).

It is beneficial for an employer to be aware of the differences between a general protections claim and a discrimination claim to understand why an employee may have chosen a certain legal path and to defend a claim in the event that it arises in their organisation.

1.   Not Just Confined to Discrimination

Under the FW Act, an employer is prohibited from taking “adverse action” against an employee or prospective employee “because of” various prescribed grounds which can be grouped into three main categories:

• industrial activities;
• workplace rights; and
• discrimination.

This means that an employee or prospective employee could bring a general protections claim on the basis of discrimination as well as, for example, making a complaint in relation to their employment.

Anti-discrimination legislation, on the other hand, is confined to direct or indirect discrimination based on a prohibited ground under the legislation.

2.  Burden of Proof: the Reverse Onus

Importantly for employers, if an employee brings a general protections claim under the FW Act and can establish that they possess a particular attribute and allege they have suffered adverse action for that particular reason, the onus of proof falls on the employer to prove that the reason for the adverse action was not because the employee possessed a particular attribute. In other words, it is presumed that the employer’s action was taken for that discriminatory reason unless the employer can prove otherwise.

3.  Compensation Caps

Under Federal anti-discrimination law and State anti-discrimination legislation in Victoria, Queensland, Northern Territory, Tasmania and South Australia, there is no cap to the amount of compensation that an employee can be awarded if their discrimination claim is successful. The general protections provisions also do not provide for a cap on compensation.

However, a compensation cap of $100,000 is prescribed under the Anti-Discrimination Act 1977 (NSW) and $40,000 under the Equal Opportunity Act 1984 (WA).

This is important as some employees may tactically choose which jurisdiction they wish to bring their claim under based on whether there is a compensation cap.

4.  Costs

One of the purported benefits of bringing a general protections claim as opposed to a discrimination claim is the “no cost” jurisdiction under the FW Act. Costs will only be awarded in limited circumstances where the Fair Work Commission (“FWC”) is satisfied that the proceedings were vexatious or without reasonable cause. If a general protections claim proceeds to the Federal or Federal Circuit Court, costs may be awarded, but only in limited circumstances.

In relation to Federal anti-discrimination claims, the Federal Circuit Court and the Federal Court have a general discretion to order costs in these matters. Regulation of costs under State anti-discrimination varies, with claims beginning in a regulatory body, where parties try to conciliate the matter and bear their own costs. For example, in NSW a claim is commenced in the NSW Anti-Discrimination Board. If the matter is then referred the the NSW Civil and Administrative Tribunal, the parties will continue to bear their own costs except in special circumstances.

This is important as employers need to remain conscious of the commercial impact that defending a general protections application may have on its bottom line, (noting that it is unlikely that costs will be awarded against the employee if an employer successfully defends a general protections application).

5.  Time Limits

Under Federal and State anti-discrimination law, there is no time limit as to when a complaint can be made however, in general, a complaint may terminated if it is lodged more than 12 months after the alleged unlawful discrimination took place.

However, an employee who is terminated from their employment and wishes to bring a general protections application must apply to the FWC within 21 days of the termination (it is possible for the FWC to grant an extension). In other circumstances, (for example, where there has been no termination of employment) there is a six year time limit for an employee to make a general protections claim to the FWC.

If you have any questions or require any assistance with defending a discrimination or general protections claim, please call PCS on 8094 3100.