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Mastering the Challenge of Employee Adverse Action Claims in Your Workplace

The Fair Work Act serves as a bastion of protection for employees, shielding them against adverse action from employers. As an employer, being on the receiving end of an adverse action claim can prove burdensome and financially challenging. To mitigate such risks, it’s crucial to understand what constitutes adverse action and when the general protections come into play.

Unravelling the Concept of Adverse Action:

Adverse action refers to any unlawful conduct perpetrated by a person or industrial association, that leaves an employee or prospective employee at a disadvantage compared to their previous position. Such conduct becomes unlawful when it’s a reaction to any of the following scenarios:

  1. The employee exercises a workplace right,
  2. The employee is involved or intends to get involved in industrial activities, or
  3. The employee possesses an attribute safeguarded under anti-discrimination laws.

Adverse actions can involve the dismissal or refusal to hire an employee, causing harm to an employee during their employment, prejudicially treating an employee differently than others, or discrimination between the employee and other staff members.

Importantly, not every action against an employee falls under the umbrella of adverse action. For instance, disciplinary measures for violations of workplace health and safety protocols, like failing to wear appropriate protective gear, are not unlawful. Adverse action gains its unlawful status when it’s based on one of the general protections.

Adverse Action and Its Intersection with Workplace Rights:

Adverse action morphs into an unlawful act if it is in response to an employee asserting a workplace right. These include:

  • Enforcing entitlements or roles provided by a workplace law (such as the Fair Work Act), workplace instrument (like a Modern Award), or an order made by an industrial body (like Fair Work Commission),
  • Initiation or participation in a procedure under a workplace law or instrument,
  • Lodging a complaint or query to a legal body or person concerning employment.

To illustrate, if you cut the working hours of a receptionist who questioned her salary, which is currently below the minimum wage stipulated in the Health Professionals and Support Services Award, that would be an unlawful adverse action.

Adverse Action in the Context of Industrial Activities:

Adverse action is illegal if it is triggered because an employee is, or intends to be, part of an industrial activity, such as joining or not joining an industrial association, participating in protected industrial action, or refusing to participate in industrial action.

For example, it would be illegal to threaten dismissal of any employee joining a union-approved national strike advocating for improved working conditions.

Navigating Discrimination and Adverse Action:

Anti-discrimination provisions in the Fair Work Act deem it illegal to take adverse action against an employee based on factors like race, colour, gender, sexual orientation, age, physical or mental disability, marital status, family or caregiver responsibilities, pregnancy, political opinion, national extraction, or social origin.

What Transpires in an Adverse Action Claim?

An employee claiming adverse action will lodge a ‘general protections’ complaint, asserting that you took adverse action due to them exercising a workplace right, participating in an industrial activity, or due to discriminatory grounds.

In this scenario, the burden of proof rests on the employer to demonstrate that the adverse action wasn’t based on a general protection, but was due to a lawful reason.

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