The general protections of the Fair Work Act prohibit the taking of amongst other things adverse action against persons including employees “because” of a prohibited reason. This is how the concept works as spelled out by the Fair Work Commission’s general protections benchbook.
“Why? – The reason for the adverse action
The use of the word ‘because’ in these provisions means that the central question in a general protections dispute, once it has been established that adverse action was taken, will be ‘Why was the adverse action taken?’.1F
This is a question of fact which must be answered in the light of all the facts established in the proceeding. It will involve a consideration of the reason or reasons of the person who made the decision to take the adverse action and surrounding circumstances including those of the employee at the time the action was taken.12F13
A question of fact is when the Commission must decide what the facts of the case are based on the evidence. Often a question of fact arises where there are two or more versions of events presented.
This means the Commission must determine which one, if either, of the circumstances is more likely to have occurred on the balance of probabilities.
Unless the adverse action was taken ‘because’ of a proscribed reason, then there will be no breach of the general protections provisions.
For example, if adverse action is taken against a person who is exercising a workplace right, there will only be a breach of the general protections provisions (s.340) if the exercise of the workplace right was the reason why (or a reason why) the adverse action was taken.”