Adverse Actions Claims

If you have recently terminated an employee’s employment you may be faced with an unlawful termination (adverse action) claim before Fair Work Commission even if you believe you have acted appropriately.

We can assist with advice for employers in ensuring they are not liable for unlawful termination (or adverse action) in the management of their employees, and assist in defending an adverse action claim.

We can also provide expert assistance in ensuring that your business has a clear and detailed bullying and harassment, discrimination policy to assist in managing employees in accordance with the law.

The Fair Work Act 2009 protects an employee from being dismissed on certain grounds, including those that are discriminatory. It’s unlawful for an employer to dismiss an employee for a number of reasons, including;

a person’s race, colour, sex, sexual preference, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin (some exceptions apply)
temporary absence from work because of illness or injury
trade union membership or participation in trade union activities outside working hours or, with the employer’s consent, during working hours
non-membership of a trade union
seeking office as, or acting as, a representative of employees
being absent from work during maternity leave or other parental leave
temporary absence from work to engage in a voluntary emergency management activity
filing a complaint, or participating in proceedings against an employer.

If you have recently terminated an employee’s employment you may be faced with an unlawful termination (general protection) claim before Fair Work Commission, even if you believe you have acted appropriately.

Under the Fair Work Act, employers, and others, cannot take adverse action against persons because they have a workplace right, because they have or have not exercised the right, or because they propose or propose not to exercise such a right.

Additionally adverse action is also prohibited where a person engages (or refuses to engage) in lawful industrial activity or where an employer discriminates against an employee or prospective employee.

What an employer should be concerned about

An employee now has an almost unfettered right to make a complaint or inquiry in relation to his or her employment without fear of adverse action. Previously this protection only arose in a situation where the complaint or inquiry was made to a person or body with the capacity to seek compliance (usually a statutory or quasi-statutory body).

It is a significant extension, because it means that any employee who has, and exercises, a right of complaint or inquiry under a grievance policy (for instance) established by the employer can claim remedies for breach of a workplace right if the employer has taken adverse action because the employee made the complaint or inquiry.

Where an allegation is made that there has been unlawful adverse action there are two main issues:

1. Once the (former) employee establishes that adverse action has occurred, the onus falls on the employer to prove that the reason for the adverse action was not because the applicant had a workplace right, engaged or refused to engage in a lawful industrial activity, or because of unlawful discrimination. This is a reverse onus of proof for employers. And,

2. Despite the fact there may be multiple reasons for the adverse action, if one of the reasons was a prohibited one, then the claim will be made out. It does not have to be the sole or even the dominant reason for the action.

Finally, maximum penalties for an unlawful adverse action are $6,600 in the case of an individual and $33,000 in the case of a corporate entity.

Adverse action can occur in two situations: with employees, and with prospective employees.

What is adverse action against an employee?

Adverse action is taken by an employer against an employee if the employer:

dismisses the employee; or
injures the employee in his or her employment; or
alters the position of the employee to the employee’s prejudice; or
discriminates between the employee and other employees of the employer.

What is adverse action against a prospective employee?

Adverse action is taken by a prospective employer against a prospective employee if the prospective employer:

refuses to employ the prospective employee; or
discriminates against the prospective employee in the terms or conditions on which the prospective employer offers to employ the prospective employee.

What is a workplace right?

A person has a workplace right if he or she:

is entitled to the benefit of, or has a role or responsibility under, a workplace law, workplace instrument or order made by an industrial body; or
is able to initiate, or participate in, a process or proceedings under a workplace law or workplace instrument; or
is able to make a complaint or inquiry:
- to a person or body having the capacity under a workplace law to seek compliance with that law or a workplace instrument; or
- if the person is an employee – in relation to his or her employ