What is adverse action?
Adverse action is action taken by an employer that is unlawful if it is taken for particular reasons. Employees cannot be harmed in any way at work because they have exercised a workplace right or engaged in industrial activity.
The Fair Work Act 2009 describes the type of harm meant by adverse action. Adverse action taken by an employer includes doing, threatening to or organising to do any of the following:
- Dismissing an employee
- Injuring an employee in their employment, E.g. – not giving an employee legal entitlements such as pay or leave
- Altering an employee’s position to their detriment E.g. – demoting an employee
- Discriminating between one employee and other employees
- Refusing to employ a prospective employee
- Discriminating against a prospective employee in the terms and conditions offered.
Workplace rights include taking leave, negotiating an enterprise agreement, taking protected industrial action, refusing unreasonable overtime, participating in dispute resolution, making a complaint or enquiry or reasonably refusing to work a public holiday. Industrial activities include recruiting employees to the union, seeking union advice, posting notices at work, joining the union, and attending union training.
One of the workplace rights that has the most potential for broad application is the right of an employee to make a complaint or enquiry. This can mean that an employee who raises virtually any enquiry or complaint, that has some loose or vague connection to their employment, can argue that any action taken against them was because of the complaint or enquiry they had made.
A courier employed by a courier company makes a complaint that the quality of the envelopes used by the company is poor and that there is a risk that documents will be damaged in transit. Arguably, if the courier was aware of this potential issue with the envelopes, it would reflect badly on the courier if they had not reported that matter. If the courier was then dismissed for some other conduct related reason, they could argue that they were dismissed because they exercised a workplace right. The employer would then bear the onus of proving that the reason for the dismissal was not the exercise of that workplace right.
This does not mean that an employer cannot appropriately and fairly manage employee’s performance and conduct and make decisions to discipline or dismiss, when such complaints or enquiries have arisen. The critical issue is being able to explain and defend the decision making process through clear evidence.
It is worth noting that fines can be imposed on the company and also individuals for breaches of the Fair Work Act. Individuals can be held personally liable for their involvement, regardless of whether the individual is aware of the unlawfulness of the conduct.