MKI Legal recently acted for a
client called John (not his real name). Due to confidentiality reasons we cannot
disclose his real name. John had a good case to make a General Protections
application to the Fair Work Commission (resulting from adverse action). He was
a part owner in a Panel and Paint business and worked in the business as a
Panel Beater and Spray Painter.
John’s case
John originally started the business with two friends, and they later
expanded into a shop across the road from the location where they established
their business. John worked long hours and was in charge of the day to day running
of both businesses due to his many years of experience in the industry.
Initially there was a verbal agreement between John and his friends
where they asserted that John had a one third share in the business.
One day John broke his foot at work and was required to be off work for
a long period of time to recover. He was off work for 4 months in total, while
he underwent rehabilitation. At that time, he also made a claim for worker’s
compensation. When he was able to walk again, John returned to work.
When John returned to work he was only required to undertake light
duties. John had planned to gradually return to his role as a Panel Beater, but
his business partners directed him to only move cars around the yard. John was
happy to do this, but in order for him to rehabilitate properly it was required
that he take on a more active role.
John continued to do as he was directed by the other business partners.
One day John came into work and was confronted by his business partners. They
told him that they wanted to have a meeting with him. That afternoon John met
with them and they told him that they no longer wanted to do business with him.
They said that John was unfit to be on site, and that they would tell Workcover
that John was not fit to be on site. They also made baseless accusations
against John that he was bullying other staff members. They told John that his employment was terminated and
that he was not allowed to return to the site.
They also suggested that they could either buy out John’s shares in the
company, or he could buy them out. John offered them a sum of money for his
share in the company but they refused, stating that John’s share was not worth anything.
Why John could make a general protections claim
John had the right to make a general protections claim to the Fair Work
Commission. Our adverse action lawyers state there were a couple of reasons why John could do
this. These are:
1. Temporary absence
from work: John was temporarily absent from work due to his
injury, as he needed time to recover. If one of the reasons for the termination
of John’s employment was the fact that he was off work for a period of time
because of his injury, then he would be protected by the general protections
provisions.
2. Exercising a
workplace right: John exercised a workplace right
by making a worker’s compensation claim. If this was one of the reasons for his
dismissal, then he is covered by the general protections provisions.
John would be entitled to compensation for his dismissal if his general
protections claim was successful.
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