Avoiding the adverse action trap

Most employers and employees are aware of the unfair dismissal provisions of the Fair Work Act, but there is another action under the Fair Work Act that is starting to make a name for itself - adverse action.

Adverse action includes:

1.       dismissing an employee;

2.       injuring an employee in his or her employment;

3.       altering the position of the employee to the employee’s prejudice;

4.       discriminating between the employee and other employees of the employer; and

5.       threatening or organising to take any of the above actions.

Adverse action can also apply to actions taken in relation to prospective employees, actions by or against independent contractors, industrial action and even actions by an employee against their employer.

One form of prohibited adverse action is action by an employer against an employee for exercising, or proposing to exercise, a workplace right such as making a complaint to a supervisor or an inquiry about employment.

Employers must be careful as unfair dismissal and adverse action can overlap. For example, an employer may wish to take action against an employee because of issues with the employee’s conduct or performance. The employee’s pattern of poor conduct could include insulting or disrespectful comments made to a supervisor during the course of a meeting. On the one hand this conduct could be considered misconduct and on the other hand this conduct could have occurred in the course of exercising a workplace right such as making a complaint to, or about, a supervisor.

An employer contemplating dismissing an employee should be mindful of (amongst other things) both following a fair process and avoiding taking adverse action against an employee. If an employer is preparing to make findings against an employee because of their conduct and there are multiple issues with their conduct/performance, one way of minimising the possibility of a potential adverse action is to explicitly exclude the potential adverse action claim from their decision making process. For example, the employer’s report could state “We have not taken into account the rude comments made by Susan in her meeting with her supervisor on 31 May 2018”.

We encourage you to seek specific guidance if you have concerns that a particular action may constitute adverse action.

Feel free to contact %81y%D7%E3%AB%D4c%9F%92%A8%AFU if you have an employment law question.