The 2Day FM general protections case

Andrew McMillen (@NiteShok) quoted me in his thoughtful @BuzzFeed article prank calls today:

The piece is mainly about the 2Day FM prank call that preceded the suicide death of a nurse, from the hospital that was treating the Duchess of Cambridge for hyperemesis gravidarum. Mr McMillen notes that one of the prank callers, radio announcer Mel Greig, has made an application to the Fair Work Commission alleging the employer failed to provide a safe workplace.

I’m not acting for Ms Greig. From the reports I’ve read, her Fair Work Commission proceeding is brought under the general protections part of the Fair Work Act. Those are the provisions that say you cannot be treated adversely because you have workplace rights, because you have exercised workplace rights, for discriminatory reasons (sex, race etc) or because of your union activity, among other things.

Applicants might use those provisions, instead of unfair dismissal provisions, because they apply to things other than dismissal – such as demotion. The general protections also allow for broader remedies – in unfair dismissal cases, the maximum possible compensation is around $65,000, and you can’t be compensated for the humiliation and distress you suffer. General protections claims don’t have those limits.

But to make a general protections claim, it’s not enough just to say that the employer’s actions were unfair. The court has to decide that the employer acted for reasons that are not allowed under the general protections part of the Fair Work Act.

You can use the general protections claim  to claim on the basis that you have been sacked (for example) because you have a workplace right, or because you’ve exercised a workplace right. In simple terms, and subject to work health and safety laws, employees have a workplace right to a safe workplace. Without seeing the court documents, I’d say that the claim in relation to ‘safe workplace’ has been made has been to allow Ms Greig to use those ‘general protections’ provisions.

It’s an interesting matter. It may settle confidentially, but if not, and if Greig takes the matter to the courts, it will be worth taking note of the decision.