Adverse Action

Table of Contents

The Fair Work Act 2009 (Cth) (the Fair Work Act) provides protection to people in employment arrangements in relation to their workplace rights, industrial activities, and anti-discrimination from certain attributes (such as sex, age and race).1

Adverse Action is when a person engages in, threatens to engage in, or organises any conduct that has an adverse effect on another party. Under the Fair Work Act, adverse action can be done by:

  1. An employer to an employee through:
      1. Dismissal;
      2. Injury;
      3. Demotion; and/or
      4. Discrimination;
  1. A prospective employer to a prospective employee by:
      1. Refusing to employ; and/or
      2. Discrimination in the terms and conditions of its offer of employment;
  1. An employee to his or her employer by:
      1. Ceasing to work; and/or
      2. Taking industrial action2

These are only some examples of situations where adverse action can occur.

Time Limit

If you believe you have been subjected to adverse action in the workplace or in relation to a job that you have applied for, you can make an application with the Fair Work Commission.3

If the adverse action has resulted in dismissal, then you have 21 days to make a claim.4 This limitation period can be altered in certain circumstances.

In deciding whether to allow an extension to the limitation period, the following will ordinarily be considered:

  • 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), then the above time limit will not apply. The Fair Work Act provides a 6-year time limit to make a claim for adverse action as it is considered a civil remedy provision.6

If you have considered making a claim, we suggest you obtain legal advice as soon as possible to ensure you can make a claim within the time limit.

Protection from Adverse Action

Workplace Rights

The Fair Work Act prohibits a person from taking adverse action against another person:
  1. because the other person has a workplace right;
  2. because the other person has exercised or failed to exercise a workplace right;
  3. because the other person has proposed to exercise or fail to exercise a workplace right;
  4. to prevent the other person from exercising a workplace right;7 or
  5. because a third person exercised, or proposed to exercise, a workplace right for the benefit of the other person, or a class of persons, to which the other person belongs.8
The Fair Work 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 Fair Work Commission;
    • court proceedings under workplace law or instrument;
    • 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 in relation to the person’s employment (if the person is an employee).
Workplace rights are not exclusive to employers and employees but can also extend to prospective employees, except in certain circumstances, such as in relation to the transfer of business11 and accepting a guarantee of annual earnings.12

Industrial Action

The Fair Work Act also provides protection in relation to industrial action. A person is prohibited from taking adverse action against another person in relation to the other person:
  1. being an officer or member of an industrial association;13 or
  2. engaging or not engaging in industrial activity.14
Engaging in industrial activity refers to engaging or failing to engage in a variety of conduct including, but not limited to:
  • being involved in establishing;
  • organising or promoting;
  • encouraging or participating in activities promoted by;
  • advancing views of; or
  • seeking representation from an industrial association.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 Fair Work 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’s responsibilities;
  9. Pregnancy;
  10. Religion;
  11. Political opinion;
  12. National extraction; or
  13. Social origin.16

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

    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

If the conduct is not in breach of any of the above legislation, then a claim for adverse action can be defeated (insofar as it relates to discrimination).

Additionally, if the conduct relates to an inherent requirement of the position, or if it is done in good faith to protect the members of a religion or creed from susceptibilities, then the conduct will not be considered discriminatory.18

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

Application and Remedies

If you believe you have been subjected to adverse action in relation to workplace rights, industrial action or discrimination, you can make an application to the Fair Work Commission to deal with the dispute,19 or alternatively, make an application with a relevant Court. If the adverse action has resulted:

  1. In dismissal, then you will need to make an application under section 365 of the Fair Work 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 Fair Work Act.

Dismissal

If you have been dismissed from your employment, you must make an application within 21 days after the dismissal took effect, save for in exceptional circumstances.20 The orders that you can seek include:

  1. Reinstatement;
  2. An order to maintain the continuity of employment;
  3. An order to maintain the period of continuous service with the employer;
  4. Payment of compensation; and/or
  5. Payment of remuneration lost.21

The Fair Work Commission 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 dispute did not result in dismissal from employment, then you may make an application under section 372 of the Fair Work Act. The Fair Work Commission 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

The application can be made directly to the Federal Circuit Court or Federal Court of Australia to be dealt with, and the Court can make any order it deems appropriate in accordance with the Fair Work Act.23 This can include pecuniary penalty orders or an injunction in relation to industrial action.24 The application can also be made to the relevant State or Territory Court, which can order payment of an amount that an employer has failed to pay to its employee.25

For Employers - Has a claim been made against you?

If someone has made a claim for adverse action against you or your company, we may be able to act on your behalf.

Given our knowledge of adverse action and employment law in general, we can advise you on the risks involved in defending the claim, fight vigorously to have the claim dismissed (if possible), or negotiate a reasonable settlement with the claimant.

Costs

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

In dismissal matters, the Fair Work Commission has the discretion to order costs against a party if it is satisfied that the party unreasonably caused those costs to be incurred.26 This decision is at the discretion of the Commissioner so it will change on a case-to-case basis.

In non-dismissal matters, the relevant 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 Assistance

Our solicitors are experienced professionals that deal with dispute resolution and litigation on a daily basis. We act for both employers and employees. As litigation lawyers, we look for ways to avoid (for employers) or prosecute (for employees) litigation matters.

This allows us to negotiate effectively to obtain an outcome suitable to our clients, or alternatively, provide better prospects of success in any claim in a Court or Tribunal.

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

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.

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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