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.
I’m John Gallagher from Argon Law and I
want to tell you a little more about adverse
action claims.
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.
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