The Reality of “Go Away Money” - Insights to General Protection Claims in the Fair Work Commission


Jessie Poon, Lawyer

The Fair Work Commission has for the first time published data on the outcomes of general protection applications involving dismissal.

One of the Commission’s objective is to provide information to potential applicants, so that they can be better informed as to what can be achieved through making general protections claims, also known as adverse action claims.

As a cautionary tale for the employer, however, it is worth noting that while most cases involving monetary settlements are for sums less than $10,000, a number of cases involved settlements in excess of $50,000 and even $100,000.

General Protections Claims – The Basics

The General Protections provisions in the Fair Work Act aim to protect workplace rights and freedom of association, and to protect employees from workplace discrimination. Under section 365, persons who believe that they have been dismissed in contravention of the general protections provisions can make a general protections claim involving dismissal.

After an application is lodged, the Commission’s task is to conduct a conciliation or mediation to resolve the dispute. If the parties are not able to resolve the matter with the Commissions’ assistance, the Commission issues a certificate which allows the parties to proceed in the courts.

What the Numbers Say

In 2015-16, the Commission received 3,270 general protections claims, also known as adverse action claims, involving dismissal. Majority of these claims were resolved at the stage of conciliation, being the 70% of cases that finalised without the need to issue certificates (Figure 1: s. 365 – General Protections Disputes involving Dismissal).

It is worth noting, however, that a 23% of cases are unable to be resolved in the Commission, and proceed to the courts.

Figure 1

Figure 1 s. 365 – General Protections Disputes involving Dismissal 2015/16

Of the cases settled, there appears to be a mix of outcomes, including monetary and non-monetary outcomes. Over 70% of cases resolved involved some monetary settlement (Figure 2: Outcomes of Disputes Settled 2015-16).

Figure 2

Figure 2 Outcomes of Disputes Settled 2015-16

Of the range of cases that resolved involving monetary payment, 842 cases settled for $10,000 or less, representing 72% of cases. 249 of cases settled for sums between $10,000 and $50,000, representing 21% of all cases settled.

Perhaps as a sign of some employers’ willingness to settle cases without proceeding to the courts where settlement sums are uncapped, 5% of cases have settled with sums in excess of $100,000 in 2015-16 (Figure 3 – Range of outcomes where a settlement involved monetary payment 2015-16). While this represents a small portion of claims made, the employers in these cases have nonetheless had to shoulder what would have been a significant financial burden as a result of the claims made.

Figure 3

Figure 3 Range of outcomes where a settlement involved monetary payments

What We Have Learnt

The 2015-16 Annual Report from the Fair Work Commission has for the first time presented insights into the sums for which general protections applications have settled for in the past year.

For individual employees considering whether to make claims against their employers, these figure provide an objective perspective to what can be reasonably achieved through the lodgement of a claim. In the majority of cases, employees expectations should be modest.

For the employer, these figures are a reminder that the potential for claims by employees remain a tangible financial risk to employer who may have inadvertently contravened the general protections provisions, even if due to ignorance or inexperience.

For peace of mind for your business and to minimise the risk of claims, sign up to MDC Legal’s Employment Law Subscription service. This service provides the policies, procedures and access to expert legal advice to help protect your business from costly legal proceedings. If claims are made, MDC Legal can assist you to resolve or defend those claims.