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‘Adverse Action’ in Employment Law

Our workplaces are an integral part of our lives, and take up most of our time and efforts.

For this reason, it is very important to feel appreciated, valued and treated fairly at work.

However, some employers, employees or contractors engage in what the law considers to be Adverse Action against one another.

Adverse Action in law occurs when either an employer, employee or independent contractor act in a manner contrary to a defined workplace right (see examples below).

Adverse Action is designed to protect all parties whether they are employer, employee, or an independent contractor from taking adverse action against each other.

BUT an important aspect of Adverse Action in law is that the person claiming to be the victim of Adverse Action is either: -

• Exercising a workplace right; or
• Is part of an industrial association such as a union and attempting to exercise rights thereof; or 
• Is experiencing unfavourable treatment and conduct because of their race, colour, sex, sexual orientation, age, physical or mental disability, marital status, family or carer's responsibilities, pregnancy, religion, political opinion, national extraction, or social origin.

 

Adverse Action is then intended to protect: -

• The right to engage in a workplace rights; and
• Our freedom of association at work (ie: to be part of a union); and
• Us from discrimination, and
• Us from been victimised or from experiencing some other form of unfair treatment due to who we are or the work right we are attempting to exercise.

 

Examples of Adverse Action

(a) being dismissed;

(b) being injured at work;  

(c) having you position in the workplace changed due to a prejudice;

(d) not been hired because of your race, colour, sexual orientation etc. someone; or

(e) been paid less than other workers in your employment who perform the same work; or

(f) being treated differently to the other people at work; or

(g) employees or contractors refusing to work; or

(h) employees taking industrial action against you because you did not meet their unreasonable demands;

(i) contractors overcharging you or refusing to complete work;

(k) employers firing contractors because they are exercising a legal workplace right or work safety procedure.

 

Examples of Defined Workplace rights

When the law talks about workplace rights it gives these rights a very board meaning to include: -

• underpayment
• leave entitlements
• enterprise agreement benefit
• complaining about a supervisor
• complaining about the safety at work etc.
• training and workplace safety.

 

The Time Limits to Lodge an Adverse Action Claim

The Fair Work Commission (FWC) can hear applications against Adverse Action, called a ‘General Protections Applications’ BUT if the Adverse Action resulted in you been dismissed (fired) you must file a claim (application) with the FWC within 21 days.

OR

Within six (6) years if the adverse action did NOT result in you being dismissed.

The Federal Courts will also hear applications within the six (6) year period. 

 

REMEDIES

A claim under adverse actions may attract a monetary penalty (fine) imposed by the Courts. AND/OR reinstatement or compensation. 

 

Case Studies

In a recent case a former employee relied on a workplace right under the Occupational Health Safety and Welfare Act.  He was a train driver of some 37 years and employed by the Respondent. Whilst in employment he was involved in a train accident where the train he was driving collided with another train and caused $5 million damage. He was given an official warning and told he would be assessed whilst performing his driver duties the following month and given a specific date.  

However, 2 days before the date of the scheduled assessment he received a telephone call informing him that he would be working a relay service commencing that day and his assessment would take place whilst driving the relay service. That evening he became extremely anxious and felt unwell.  So, he informed the assessor that he felt violently unwell and he was unable to drive the train.  As a result of his failure to drive the train that day, his employment was terminated.

The Court said that the ex-employee had intended to exercise a workplace right, (the Occupational, Health, Safety and Welfare Act) to take reasonable care to protect his own health and safety at work, as well as the health and safety of other persons by not driving the train while being mentally or physically ill. The Court also found that the employer had terminated his employment in breach of the Disability Discrimination Act because he suffered a mental and physical disability at the time.