Mr Sathananthan (“the Applicant”) claimed he was being constructively dismissed from his employer (“the Respondent”) after being expected to work excessive hours well beyond his contractual terms. As this case will demonstrates, employers ought to
Why engage an Adverse Action & General Protections Lawyer?
The general protections laws protect people from ‘adverse’ action at work. Adverse action is a harmful action a person takes or threatens to take. You may be eligible to apply if someone has taken adverse action against you on the basis of a prohibited reason (or general protection) that applies to your employment.
If your employer takes adverse action against you, because you have a workplace right or could have exercised a workplace right, this gives rise to taking a legal course of action. Adverse action is effectively any type of action taken that has a detrimental effect on an employee’s employment. This includes (but is not limited to) mistreatment, demotion, termination and/or changing reporting lines. An example of adverse action is being demoted after taking a period of parental leave, which is a general protection and workplace right.
In terms of taking legal action, it doesn’t matter if you are newly employed, or have been with your employer for some years; it’s still treated as adverse action if it infringes on an employee’s rights when they have exercised (or have) a general protection. There is also no income or salary cap in this area of law, and anyone, whether on a minimum wage or a very high-income earner, is eligible to make a claim if adverse action has taken place on the basis of your general protections. There is no capped limit to the amount of compensation that can be claimed in this jurisdiction either.
General protections exist to ensure that workplaces are fair, and to prevent unlawful action being taken. Anything contrary to these protections is defined as Adverse Action.
The four main categories of general protections are:
- Workplace rights
- Industrial Activities
- Other protections, including Discrimination
- Sham Arrangements (applicable to independent contractors)
Fair Work Act 2009 (Cth)
Under the Fair Work Act, Adverse Action claims can arise from any harmful action or threats of harmful action directed at an employee or employer. Adverse Action matters may also include contractors or industrial associations, though less frequently.
Examples of Adverse Action include:
- Dismissing an employee
- Demoting an employee
- Not treating an employee with procedural fairness.
- Making false or damaging statements about an employee, employer, or business.
- Engaging in coercion, undue influence, or pressure tactics to force an employee, or employer to take or not take specific action.
- Instigating or participating in action that damage reputation or business relationships.
- Changing an employee’s job in a detrimental way (limiting hours previously given, taking duties away, shifting the job duties) without any valid reason for doing so.
- Bullying or harassment, such as subjecting an employee or employer to repeated mistreatment, abusive behaviour, or offensive conduct that, creates a hostile work environment.
- Discriminating between employees or offering unfair terms to potential employees in comparison with other employees
- Refusing to hire prospective employees who can do the job successfully based on factors like their race, gender, age, or disability.
- Taking negative action against an employee or employer in response to their exercise of workplace rights, such as making a complaint or participating in legal proceedings.
- Withholding entitlements: Denying an employee their rightful entitlements, such as wages, leave, or superannuation contributions.
There are also general protections outlined under the Fair Work Act in Australia that define basic employment law guidelines, which are protected attributes of an employee in their employment.
Under the Fair Work Act 2009 in Australia, Adverse Action is viewed as any action taken by an employer or employee that can be detrimental to their employee or employer. A broad range of activities can fall under this employment law category, which we looked at above. Taking steps that can be considered adverse against an individual in the workplace that contrasts with their workplace right is a core factor in the decision-making process when assessing workplace law matters.
What is an Adverse Action?
In simple terms, Adverse Action is doing something that can hinder successful outcomes for another or is directly harmful. This may be direct or indirect, but the result of the action against another person affects them negatively. In workplace law matters, it is an action that negatively affects a person’s employment or affects an employer and their business. Sometimes even commonplace employer action can negatively impact an employee’s position.
Is Adverse Action Unlawful?
It is unlawful if it is taken for particular prohibited reasons, such as injuring an employee’s employment or an employee injuring their employer or workplace. Taking adverse action against another won’t always be unlawful; this depends on the nature of the action and whether it was taken on the basis of you exercising a workplace right. Generally speaking, it’s illegal if the action is deemed unlawful, irrespective of employment law. This may include sexual harassment, bullying, threats, abuse, intimidation or anything to do with discrimination.
What are the main circumstances for Adverse Action claims arise?
The most common circumstances for a claim of this nature to take place are:
An employee taking action against an employer for dismissal, demotion, injury, negative altering of their position or discrimination
An employer against an employer for cessation of work, industrial action or other action designed to harm the employer or their business
A potential employee against a potential employer, regarding a refusal to employ based on discrimination or offering a position on terms that indicate discrimination
An independent contractor against a contractor or principal, based on a refusal to engage in services, discrimination or refusal to supply goods or services
A contractor or principal against an independent contractor when a contractor ceases work under contract or takes industrial action against the former.
An employee, contractor or employer against an industrial association imposing action that will harm the employment or business of the former.
In Australia, a workplace right refers to the entitlements and protections granted to employees under employment laws and regulations. These rights are designed to ensure fair and safe working conditions and cover various aspects of employment. Some examples of workplace rights in Australia include:
The right to receive the minimum wage and be paid at least the minimum wage set by the Fair Work Commission.
The right to work in a safe and healthy workplace, free from hazards and risks to their health and safety.
The right to employment conditions and entitlements, including paid leave (annual, personal, and parental leave), overtime pay, penalty rates, and other entitlements outlined in employment contracts or applicable awards.
The right to join a trade union and participate in union activities, including collective bargaining and industrial action.
The right to be treated fairly and without discrimination based on race, gender, age, disability, or religion.
The right to request flexible working arrangements when they have caregiving responsibilities to balance work and personal life.
The right to make a complaint or enquiry, to raise concerns and complaints about their employment conditions, wages, or any other workplace issues without fear of reprisal.
It’s important to note that these workplace rights may vary depending on the specific industry, employment agreements, and applicable laws. Employees should familiarise themselves with their rights as outlined in the Fair Work Act 2009 and any relevant industrial instruments that apply to their employment.
Industrial action refers to collective action taken by employees, usually organised through their trade unions, to address workplace issues and advance their interests. It is a form of protest or negotiation tactic employees employ to put pressure on their employers during disputes. Industrial action can take various forms, including strikes, bans on overtime or specific tasks, and other activities that disrupt normal work operations.
Industrial action is governed by specific rules and regulations outlined in Australia’s Fair Work Act 2009. Before taking industrial action, employees and their unions must follow specific procedural requirements, such as notifying the employer and relevant authorities in advance. The purpose of these requirements is to encourage negotiation and resolution of disputes before resorting to industrial action.
Discrimination in Australia refers to the unjust or unfair treatment of individuals or groups based on race, sex, age, disability, sexual orientation, gender identity, religion, and other characteristics. Any action or behaviours that treat people less favourably or adversely due to these attributes, such as denying employment opportunities, unequal pay, harassment, or creating a hostile work environment, are discriminatory. Discrimination is prohibited by various laws and acts, including the Australian Human Rights Commission Act 1986 and the Fair Work Act 2009, which aim to promote equality, protect individuals from discrimination, and provide avenues for redress.
Who is covered by an Adverse Action claim?
Fulltime, part-time and casual employees, contractors, employers, contractors and principals can all make Adverse Action claims under the Fair Work Act in Australia.
What is not considered an Adverse Action?
Not all action that may seem adverse are considered Adverse Action under Australian employment law. Examples include reasonable management action, genuine redundancy, and decisions based on an employee’s capacity, performance, or conduct, provided they are lawful, fair and not on the basis of a protected work attribute.
What is an example of an Adverse Action?
There are many instances of Adverse Action with various variable factors. One example would be if an employer terminates an employee’s contract because the employee exercised their workplace rights. This may be filing a complaint or making an enquiry about your employment, joining a trade union, or requesting flexible work arrangements.
Another example is when an employer discriminates against an employee based on age, gender, race, or other protected attributes, leading to unfavourable treatment, such as denial of promotions, pay cuts, or exclusion from training opportunities. Adverse action can also occur if an employer takes punitive measures against an employee for participating in industrial activities, such as strikes or industrial disputes. These examples illustrate instances where employees suffer detrimental treatment due to exercising their rights or engaging in protected activities.
How to resolve an Adverse Action matter?
There are many ways to resolve matters of this nature, most of which can be achieved without going to court. Generally, the following options are available:
- Seek internal resolution
- Engage in mediation or negotiations
- Lodge a complaint with the Fair Work Commission (FWC) or the relevant state/territory authority
- Legal action
- Court proceedings
It is advisable to seek legal advice throughout the process to understand your rights, obligations, and the best course of action based on your situation.
What is the process of an Adverse Action claim?
The process of an Adverse Action claim in Australia involves gathering evidence, lodging a claim, engaging in early conciliation, attending a formal hearing, receiving a decision and remedies, and potentially pursuing an appeal.
Adverse Action Claims - For Employees
What is the time limit to make an Adverse Action claim?
It’s imperative to start an Adverse Action claim as soon as possible if you have been dismissed due to the 21-day time limit on claims. If a claim does not involve a termination or dismissal, these time limits do not apply, but it is still wise to act promptly to reach a resolution sooner.
What steps can employees take when confronted with Adverse Action?
It’s best to document what is happening and gather any evidence as it arises. Keep notes with dates and times, as well as any potential witnesses. It’s vital to get legal guidance and ensure you understand your rights, responsibilities and options for resolution.
What steps can employees take to avoid Adverse Action?
Being familiar with the Fair Work Act, Employee guidelines for your business and general workplace protection provisions and acting accordingly is the best way to avoid adverse action claims against you.
What are the costs associated with making or disputing a claim?
As with any legal matter, costs can vary greatly. We can provide a transparent outline of costs after we discuss the nature of your matter and you are clear about which option you would like to pursue resolution.
Adverse Action Claims - For Employers
What are the risks for employers?
Employers in Australia face the risks of reputational damage, financial penalties, compensation payouts, and potential legal costs if they are found to have breached the adverse action provisions. Non-compliance can harm employer-employee relationships and may lead to negative consequences for the business.
How to protect your business from an Adverse Action claim?
To protect your business from an Adverse Action claim in Australia, ensure compliance with employment laws, maintain clear policies and procedures, document performance issues and decisions, provide honest and transparent communication, and seek legal advice when needed. Regularly review and update employment practices to minimise risks and promote a positive workplace culture.
How do you win an Adverse Action claim?
To increase your chances of success in an Adverse Action claim in Australia, gather substantial evidence to support your case, demonstrate a clear motive behind the adverse action, show that the move was not lawful or justified, and establish a causal link between the adverse action and the exercise of a workplace right. Seek legal advice, present your case effectively, and comply with the legal process to improve your prospects of winning the claim.
What are general protection claims?
General protection claims in Australia refer to legal action taken by individuals who believe their workplace rights have been infringed upon. These claims are made under the Fair Work Act 2009 and cover a broad range of issues, including adverse action, workplace discrimination, coercion, and breaches of workplace rights.
What is covered by general protection laws?
General protection laws in Australia cover a range of workplace rights, including protection against adverse action, workplace discrimination, coercion, and breaches of workplace rights. These laws safeguard employees’ rights to freedom of association, collective bargaining, and protection from unfair treatment or discrimination in the workplace.
Who can make a general protection claim?
Any employee, prospective employee, contractor, or industrial association member who believes their workplace rights have been infringed can make a general protection claim in Australia.
What is considered a breach of general protection provisions?
A breach of general protection provisions occurs when an employer takes adverse action against an employee for exercising their workplace rights.
How can Stevens & Associates Help with Adverse Action?
Employees & Independent Contractors
Our specialist employment law team will ensure that you clearly understand your rights as a worker, whether an employee or an independent contractor. We can represent you in court proceedings and negotiate during mediation. In many instances, our team will be able to provide you with ample guidance and support to successfully negotiate any workplace issue you are facing and ensure that any Adverse Action, Unfair Dismissal or another valid claim under the Fair Work Act 2009 without the necessity for litigation to occur. We can assist you in seeking compliance from your current employer and advise you on proceeding with any further complaint or enquiry you may have related to your employment.
We can assist employers across all areas of employment law, including Adverse Action claims. If you are facing a claim against you or making a claim against an employee or industrial association, we will walk you through the legal process, ensuring you have the necessary guidance to present a successful claim or defend a claim against you. We will work towards achieving a fair and cost-effective resolution, using mediation and negotiations where possible to ensure a smoother process.