General protection provisions and adverse action

One of the ‘sleeping giants’ of the Fair Work Act are the provisions relating to adverse action. Recent case law decisions have started to provide a much fuller sense of the impact of these provisions on employers.

What is it?

The general protections provisions of the Fair Work Act protect workplace rights and freedom of association and to provide protection from workplace discrimination. A person (such as an employer) must not take any adverse action against another person (such as an employee) because the other person has a workplace right, has exercised a workplace right, or proposes to exercise such a right.

What are the implications?

The new provisions have substantially enhanced the old ‘unlawful termination’ provisions and are now a broad and powerful employee protection.

Section 342 of the Act defines it as “an adverse action is taken by an employer against an employee if the employer:

(a)  dismisses the employee; or

(b)  injures the employee in his or her employment; or

(c)   alters the position of the employee to the employee’s prejudice; or

(d)  discriminates between the employee and other employees of the employer.”

The Act goes on to define adverse action as also applying to prospective employees.

The expanded definition means that there is much greater scope for disaffected employees to make claims, and that these claims are no longer limited to terminations but may also now include any action by an employer at any time that affects the employee adversely. For example:

• issuing a warning
• removing a benefit
• requiring a response to allegations

The law also provides that interim orders can be made to stop the action while the claim is being heard. So for example, where a termination is likely to occur, the Court can make an interim order to stop that termination until such time as the case has been heard and determined. And available remedies include reinstatement and unlimited damages.

Given the expanded definition, reverse onus of proof (the employer has to discharge the burden of proof or the claim will proceed), available remedies, and the fact that the provisions provide another avenue for discrimination complaints and unfair dismissal claims that are out of time; it’s clear that this is an area in which to be cautious.

The protections provided by the Act however are a two edged sword and employers can equally take action against employees and unions for abeachofWorkplace Rights. Adverse action might also involve an independent contractor.

Now, more than ever, it is imperative to have well defined policies and procedures that are fair, lawful, consistent and transparent. It is critical to ensure that line managers are trained in both these policies and the provisions of the Act. And as always, it is vital to ensure that decisions relating to employees that might come under these provisions are well documented and maintained.