When an employer treats an employee in a negative or prejudicial way, so as to breach what are called the general protections under the Fair Work Act, this can give rise to an adverse action claim by an employee against the employer.
There are many general protections given to employees by the Fair Work Act throughout Australia. These are divided into four broad categories which are:
- the exercise or non-exercise of workplace rights or entitlements;
- freedom of association or involvement in lawful industrial activities;
- protection from sham contracting arrangements; and
- other protections including various forms of unlawful discrimination, prejudicial treatment due to illness or injury, or demanding payment of a bargaining services fee.
Various forms of behaviour can constitute adverse action. The most common examples are dismissal, workplace injury, unfairly altering workplace conditions, unlawful discrimination and coercion.
All this sounds relatively straight forward. However, things often become messy quickly. For example, what happens when there are performance issues triggering a need for accountability, but the worker then raises adverse action? What is reasonable management action in these circumstances? Who is responsible for proving what? What evidence is needed to defend or bring an adverse action claim? If multiple people are involved, will the accessorial liability provisions be triggered, and if so, what is the exposure for everybody involved?
At Argon Law, we act for employees and employers. If you have been exposed to adverse action in the workplace or are concerned the action you intend to take might expose you to adverse action claim, please give us a call.