26 SEPTEMBER 2011
Recent cases reinforce that a claim for adverse action poses a real risk to employers, even where employees are otherwise disqualified from making an unfair dismissal claim as they are paid above the high income threshold or yet to complete the qualifying period to make such claim.
The Fair Work Act (Cth) 2009 prohibits a person (usually an employer) from taking adverse action against another person (usually an employee, prospective employee, or independent contractor) because they have a workplace right. It also applies threatening or organising to take such prejudicial action.
Adverse action will include injuring, prejudicing or discriminating against an employee in their employment, or dismissing an employee. A workplace right includes a right or responsibility arising from a workplace law or workplace instrument, as well as a right to participate in a process under a workplace law or instrument.
To be successful, the applicant must prove both that the action occurred, and that they had a workplace right. If they do, the onus reverts to the employer to show that it did not engage in adverse action.
Exposure to an adverse action claim can be minimised by ensuring that all employee related decisions and disciplinary procedures are transparent, in accordance with the FWA, documented and defensible.
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[contactsbox] [leftcolumn]Contact Partner: Tracey Miley
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