Employment Rights Apply From Day One: A Successful General Protections Resolution
The Synopsis
Enterprise Legal recently acted for an employee who resolved a general protections claim, following the termination of their employment during their probationary period. Our client submitted a complaint about the conduct of the person who was training them in a new role – shortly after that complaint our client was terminated based on untrue and unproven allegations of misconduct. EL assisted the employee to commence a general protections claim, strategically negotiating a successful compensation outcome for our client.
Setting the Scene
Our client started a new job and was undergoing training. After approximately a week of training, our client submitted a complaint for inappropriate behaviour and conduct of the trainer. Shortly after that complaint was submitted, the attitude of that trainer towards our client worsened and our client was suddenly subjected to a number of false and unproven allegations, ultimately leading to termination a month prior to the expiry of our client’s probationary period.
The Game Plan
Our client was barred from brining an unfair dismissal claim because their termination was, in fact, still in his probation period. However this does not prevent employees from bringing general protections claims, if they were subjected to adverse action (in this case the termination) for a protected reason.
In general protections claims, the burden of proof rests with the employer to prove that termination of an employee was not because of (or at least was not predominantly because of) a protected reason under the Fair Work Act. This is known as the ‘reverse onus of proof’ and it forces the employer to prove their reasons for termination were genuine, provided the employee can first ‘enliven’ this onus by establishing certain facts.
Here, the facts supported that the underlying reason for the employer’s termination was not genuine and that the adverse action was taken because our client exercised a workplace right in the form of making a complaint about the trainer.
The Resolution
The claim was unable to be resolved in the Fair Work Commission despite two attempts at Conciliation. The Fair Work Commission then issued its’ certificate allowing our client to progress the matter to the Federal Circuit and Family Court of Australia.
There, the employer was directed to hand over all of its’ evidence regarding the employee’s complaint and subsequent termination to us, following which the parties were to be required to attend another mediation. However before that evidence was given, we negotiated a successful compensation outcome for our client with the employer, together with a positive statement of service that our client was able to use to secure alternative employment.
The EL Experience
For our client, they felt immediately that they were being treated differently after the complaint about their trainer was made and they knew there was something wrong about the way their employment had been terminated. Our client was relentless in their pursuit for justice and here’s what they had to say after their matter was resolved:
“Johnathon Althaus represented me on a general protections matter. From the moment he took on my case, Johnathon showed professionalism, diligence, and genuіne commitment. He represented me through several mediations, keeping clear and regular communication throughout the process.
Even when the opposing counsel was dismissive and derisive at our requests, Johnathon stood firm in his position and continued to advocate strongly on my behalf. His determination, strategic thinking, and guidance ultimately led to a beneficial settlement.
I highly recommend Johnathon and Enterprise Legal to anyone seeking representation which combines legal skill with dediсation and integrity.
Thankyou for your assistance in my matter, I am truly grateful for your persistence”
