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It is not well known that the Fair Work Act (Act) provides that an employee has a “workplace right” if the employee is able to make a complaint or inquiry in relation to his or her employment. An employer contravenes the Act if the employer takes “adverse action” against the employee (for example, by dismissing the employee) because of the employee’s workplace rights.

This is action taken by a person or industrial association that is deemed unlawful under the General Protections provisions of the Act.

What is an adverse action?

An adverse action can be anything that affects an employee adversely. In simple terms this means that any disciplinary action taken against an employee, such as a suspension, or even a written warning, could constitute an adverse action.

Under the legislation, any adverse action against an employee will be deemed to have been taken for an illegitimate reason unless the employer can prove to the contrary.

If that seems harsh the onus of proof lies with the employer, who must then prove that the adverse action was not a result of the employee attempting to exercise their workplace rights.

Let us look at specific events that may be regarded as an adverse action. The events below describe the circumstances in which a person may have an adverse action against another person.  These circumstances include actions taken by an employer against an employee for:

  • Dismissing the employee;
  • Injuring the employee in their employment;
  • Altering the employee’s position to the employee’s detriment;
  • Discriminating between the employee and other employees of the employer.

Adverse action can also be taken against contractors and potential contractors

The risks for employers

The general protections present considerable risks for employers for a number of reasons. Firstly, they are open to prospective and current employees as well as contractors and other workers, so they are quite broad.

When compared with the minimum employment period needed to be served before having access to unfair dismissal remedies, general protections are accessible by a wider range of people and provide broader remedies including injunctions.

Time limits apply

While time limits for lodging claims are the same as for unfair dismissal, damages are uncapped and the reverse onus of proof means the employer is effectively guilty until proven otherwise.

In cases where a person has been dismissed applications must be made within 21 days after the dismissal took effect. The Fair Work Commission can only grant extensions of time in exceptional circumstances.

Complaints

It is unlawful for an employer to take adverse action against an employee because the employee has made a complaint or enquiry in relation to their employment.

Courts have taken differing views on what constitutes a complaint or enquiry. However, there needs to be a sufficient connection between the complaint or enquiry and the employee’s employment.

In circumstances where a person has been dismissed after making a complaint or enquiry, it is important to promptly seek legal advice to assess whether they may be an entitled to make a claim.

Employers need to take care

The law in this area is presently unsettled however employers should assume that a broad range of expressions of discontentment by employees could give rise to an adverse action claim.

These could range from issues relating directly to an employee’s rights or entitlements under legislation, industrial instruments or contracts through to matters relating to how work is performed, and even the employer’s relationships with third parties.

How employers respond to these complaints or issues when raised by employees will be of critical importance should the matter proceed to Court.

Employers need to have effective complaint/grievance resolution processes in place, and apply them fairly when issues arise.

Employers also need to be careful when instigating, or continuing, disciplinary or performance management processes in respect of employees who raise employment-related issues or concerns.

In those situations, the employer will need to be able to explain and defend its decision-making process (e.g. leading to dismissal or disciplinary action) – in order to demonstrate that any adverse action taken against an employee was based on legitimate reasons and was not tainted by the employee having instigated a complaint.

Summary

If you are an employee or an employer you need to know more about adverse action claims. Even commonplace employer actions can result in an adverse action claim if HR doesn’t follow the letter of the law and adapt policies to avoid falling foul of the provisions.

If you need further information about protecting your business from adverse action claims by employees or if you are an employee and would like advice an employment law matter please call Lynn & Brown Lawyers on 9375 3411 for an appointment or contact us.

About the author:

This article has been authored by Peter Heazlewood of Lift Legal for Lynn & Brown Lawyers.

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