Adverse Action Claims - Employer and Employee Rights
The General Protection provisions of the Fair Work Act (the Act) aim to protect the workplace rights of employees both at work and in cases of dismissal. The Act asserts that employers (or persons) cannot take 'adverse action' against another person (an employee), because the person has a workplace right, or a proposal to exercise that right.
Adverse action claims are being increasingly used by employees against employers, and the onus of proof is now on the employer to prove that any action against an employee was legitimate.
Examples of 'adverse action' may include:
- Dismissing the employee;
- Injuring the employee in his/her employment;
- Prejudicing the employee;
- Discriminating between employees;
- Refusing to employ; or
- Discriminating in relation to contract terms.
In simple terms this means that any disciplinary action taken against an employee, such as a suspension, or even a written warning, could constitute an ‘adverse action’. Under the legislation, any adverse action against an employee will be deemed to have been taken for an illegitimate reason unless the employer can prove to the contrary.
The Act affords to prospective, current and dismissed employees as well as employers adverse action claims. Where a workplace right has been breached or is threatened to be breached an employee or an employer can commence an adverse action claim. Therefore, it is prudent to understand what a workplace right is.
A workplace right is defined in the Act and can be summarised as:
- An entitlement, benefit, or responsibility under a workplace law, workplace instrument or an order made by an industrial body;
- The ability to participate or initiate a proceeding under a workplace law or workplace instrument;
- The ability to make a complaint or inquiry to a body that can enforce compliance with a workplace law or a workplace instrument.
The Act posits a need for employers to protect themselves against adverse action claims. To do this an employer may want to consider:
- Establishing a recruitment process that complies with anti-discrimination laws, equal opportunity legislation and the Act;
- Staff involved in recruitment being aware of their statutory obligations;
- Educating managers about employee's rights;
- Introduce policies to facilitate the expression of employee concerns coupled with appropriate conflict resolution provisions;
- Train managers to maintain records of employee concerns and requests.
Once a workplace right is understood by employers and employees, the likelihood of an adverse action claim being brought is significantly reduced. Therefore, it is prudent for employers to ensure that systems and processes surrounding prospective, current and dismissed employees seek to prevent adverse actions claims from formulating.
If you would like further information in relation to Adverse Action Claims, or have a specific query about this topic, our consultants can provide professional advice in relation to your circumstances.
28 Mar 2012