Adverse Action

Table of Contents

Introduction - adverse action

The Fair Work Act 2009 (the Act) protects an employee’s rights in the workplace of private businesses, such as the right to take industrial action, to be free from unlawful discrimination and to be free from undue pressure in negotiating employment arrangements. This article does not relate to public sector employees.

Adverse action means an action considered unlawful under the Act. It occurs when a person engages in, threatens to engage in, or organises any conduct that has an adverse effect on another party. The ambit of adverse actions claims is broad. For example, in some circumstances:

  • An employer can take adverse action against an employee by dismissing them, injuring them, demoting them, and/or discriminating against them.
  • A prospective employer can take adverse action against a prospective employee by refusing to employ them, or discriminating in the terms and conditions of an offer of employment.
  • An employee can take adverse action against their employer by stopping work or taking industrial action.

Time limit for an adverse action

If you believe you have been subjected to adverse action in the workplace or in relation to a job you have applied for, you can apply to the Fair Work Commission (FWC).3

If the adverse action has resulted in dismissal, you have 21 days to make a claim.4 This limitation period can be extended in certain circumstances. In deciding whether to allow an extension, the commission will consider:

  • the reason for any delay in bringing the claim;
  • any actions you have taken to dispute the dismissal;
  • prejudice to the employer that may be caused by the delay;
  • the merits of your application; and
  • whether it is fair to extend the time limit given other similar cases.5

If the adverse action has not resulted in dismissal (for example, demotion or discrimination), you have 6 years to make a claim.

If you have considered making a claim, you should obtain legal advice as soon as possible to ensure you can make a claim within the time limit or apply to extend the limitation period.

Types of adverse action claims

Workplace rights

The Act prohibits a person from taking adverse action against another person because the second person has a workplace right, has exercised a right or proposes to exercise a right. It also prohibits someone from preventing a person from exercising a right on behalf of a third person.

The Act defines a workplace right as:9

  1. a benefit or responsibility under a workplace law, instrument, or made by an industrial body;
  2. an ability to initiate or participate in a process or proceedings under a workplace law or instrument including, but not limited to:
    • a conference or hearing with the FWC;
    • court proceedings;
    • protected industrial action; or
    • agreeing to cash out paid annual leave or personal carer’s leave;10
  3. an ability to make a complaint or inquiry under a workplace law to seek compliance with the law or instrument; or
  4. an ability to make a complaint or inquiry about the person’s employment (if the person is an employee).

Workplace rights are not exclusive to employers and employees; they can extend to prospective employees in many cases.12

Industrial action

The Act also provides protection in relation to industrial action. Adverse action cannot be taken against a person because they are an officer or member of an industrial association;13 or engaging or not engaging in industrial activity.14

Engaging in industrial activity includes organising, promoting, encouraging and participating.15

If your employer has altered your employment to your disadvantage because of your involvement in industrial activity, you may have a claim for adverse action.

Discrimination

Finally, the Act prohibits employers from taking adverse action against employees or prospective employees because of one or more of the employee’s attributes. The protected attributes are:

  1. race;
  2. colour;
  3. sex;
  4. sexual orientation;
  5. age;
  6. physical or mental disability;
  7. marital status;
  8. family or carer responsibilities;
  9. pregnancy;
  10. religion;
  11. political opinion;
  12. national extraction; or
  13. social origin.16

For a discrimination claim to be successful, the discriminatory conduct must be unlawful under anti-discrimination law in force in the place where the action is taken. In Queensland, anti-discrimination law consists of Queensland and Commonwealth legislation:

    1. Anti-Discrimination Act 1991 (Qld);
    2. Age Discrimination Act 2004 (Cth);
    3. Disability Discrimination Act 1992 (Cth);
    4. Racial Discrimination Act 1975 (Cth); and
    5. Sex Discrimination Act 1984 (Cth).17

The Act allows for certain circumstances where conduct will not be considered discriminatory. For example, where being of a particular sex is a genuine occupational requirement.18

For more information, see our services page on Discrimination and Employment.

Making an adverse action claim

If you believe you have been subjected to adverse action in relation to workplace rights, industrial action or discrimination, you can apply to the FWC or to a court to deal with the dispute.19 If the adverse action has resulted:

  1. in dismissal, then you will need to make an application under section 365 of the Act; or
  2. in anything other than dismissal (e.g. demotion or an alteration of your employment), then you will need to make an application under section 372 of the Act.

Dismissal

If you have been dismissed from your employment, the orders that you can seek include:

  • reinstatement;
  • an order to maintain the continuity of employment (as if the dismissal did not happen);
  • an order to maintain the period of continuous service with the employer;
  • payment of compensation; and/or
  • payment of remuneration lost.21

The FWC can also recommend that the application for adverse action be made as an application for unfair dismissal. For more information, see our article on unfair dismissal.

Non-dismissal

If your adverse action claim did not result in dismissal from employment, the FWC does not have the power to hear, arbitrate or determine the matter, although it may conduct a conference with the consent of the parties.22

An application can be made directly to the Federal Circuit Court or Federal Court of Australia to hear the dispute. The court can make any order it deems appropriate in accordance with the Act.23 This can include pecuniary penalty orders or an injunction in relation to industrial action.24 The application can also be made to a state or territory court, which can order payment of an amount an employer has failed to pay to its employee.25

Costs

In Australian law, “costs” usually refers to legal costs incurred in making or fighting a claim.

In dismissal matters, the FWC has the discretion to order costs against a party if it is satisfied that the party unreasonably caused those costs to be incurred.26

In non-dismissal matters, the court has the power to order costs only where the party’s conduct or the proceeding was vexatious or unreasonable.27

For when you need help with employment matters

Our solicitors are experienced professionals that deal with dispute resolution and litigation daily. We act for both employers and employees. This gives Gibbs Wright a competitive advantage, because we have knowledge from both sides of the conflict, and we can use our experience to our client’s advantage.

As litigation lawyers, we look for ways to avoid (for employers) or prosecute (for employees) litigation matters. This typically involves developing a strategy, and deploying tactics to advance negotiations or pursue a positive outcome at court. 

Whether you want to avoid or prosecute an employment matter, whether adverse action, unfair dismissal, redundancy or otherwise, we are here for you.

For adverse action claims in particular, even commonplace employer actions can result in an employee pursuing an adverse action claim. You should know your rights and responsibilities. It is important that you receive further information from our skilled lawyers about your specific case.

Call Gibbs Wright Litigation Lawyers about your employment matter for a free and confidential initial consultation to discuss your legal rights and obligations.

 

[1] Fair Work Act Part 3-1 Divisions 3 and 4, 5.

[2] Fair Work Act s 342(1).

[3] Fair Work Act s 365 or s 372.

[4] Fair Work Act s 366(1).

[5] Fair Work Act 2009 (Cth) s 366(2).

[6] See Fair Work Act ss 340, 346, 351 and 544(a).

[7] Fair Work Act s 340.

[8] Fair Work Act s 340(2).

[9] Fair Work Act s 341.

[10] Fair Work Act s 341(2).

[11] Fair Work Act s 341(5).

[12] Fair Work Act s 341(4).

[13] Ibid s 346(a).

[14] Fair Work Act s 346(b)-(c).

[15] Fair Work Act s 347.

[16] Fair Work Act s 351(1).

[17] Fair Work Act s 351(2)-(3).

[18] Fair Work Act s 351(2).

[19] Fair Work Act s 365 & 372.

[20] Fair Work Act s 366(1).

[21] Fair Work Act s 369(2).

[22] See Salby -v- Macquarie University & Anor [2016] FCCA 3.

[23] Fair Work Act s 545(1).

[24] Fair Work Act s 545(1).

[25] Fair Work Act s 545(3)

[26] Fair Work Act 2009 (Cth) s 375B.

[27] Fair Work Act s 570.

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The content of this publication is intended as general commentary only and may not be suitable or applicable to your personal circumstances. It is not intended to replace independent legal advice. You can contact us at our Brisbane Office for a free consultation on a range of litigation matters on (07) 3088 6364.

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