Adverse Action: what employers need to know

The Fair Work Ombudsman has secured a $115,668 penalty against a Gold Coast security company owner after the owner admitted taking unlawful adverse action against a security guard by dismissing him.

The guard was dismissed because he queried the hours he had been rostered to work.

This dismissal breached the General Protections provisions of Fair Work Act, which makes it unlawful to take adverse action against an employee for making a complaint or enquiry in relation to their employment. Read Fair Work’s Media Release on the topic here.

An adverse action occurs when an employer behaves in a manner that puts an individual (or individuals) at a disadvantage when the individual has exercised a workplace right.

The meaning of adverse action is defined in section 342 of the Fair Work Act and includes an employer:

• dismissing an employee for making a complaint or enquiry relating to their employment
• injuring the employee in their employment: eg. not providing the employee legal entitlements such as pay or leave
• changing an employee’s job to their disadvantage
• discriminating between an employee and other employees in the workplace
• offering a potential employee different and unfair terms and conditions for the job compared to other employees.

Unlike the minimum employment period criteria relating to the lodgement of an application for unfair dismissal, an employee has protection from adverse action from their date of commencement. Employers facing the prospect of defending an adverse action claim may find there’s no cap on compensation awarded if the employee is successful in their claim (the maximum compensation that can be awarded for an unfair dismissal claim is currently $72,700). Employees also face “reverse onus of proof” obligations when it comes to defending an adverse action claim.

Are you comfortable your employer obligations under the Fair Work Act are sorted? Why not give Bare Bones Consulting a call for a chat or email your enquiry here. For the price of a coffee we’ll show you what you need to know. That’s piece of mind for you…plus you get coffee: win/win!