As an employee, it’s important to comprehend your rights and protections in the workplace, as stipulated by the Fair Work Act. This legislation safeguards your workplace rights and freedom of association, while providing protection against discrimination, victimisation, and other forms of unfair treatment.
Understanding ‘Adverse Action’ and Your Workplace Rights
A key concept within the Fair Work Act is ‘adverse action’. It’s unlawful for any employer to take adverse action against you for having a workplace right, exercising that right, or proposing to exercise such a right.
Workplace rights include benefits and roles or responsibilities under a workplace law, instrument or order. For instance, being entitled to annual leave, personal carers leave, and parental leave, or having the ability to lodge a complaint or inquiry about your employment, are all defined as workplace rights. If you’re supporting a colleague through a grievance claim or ensuring a safe workplace in compliance with occupational health and safety legislation, these responsibilities also fall under the definition of workplace rights.
Adverse action can take many forms. It includes dismissal, injury (such as unwarranted disciplinary action), position alteration to your detriment (like demotion), or discrimination. Even the threat of taking any such action is considered adverse action.
You needn’t demonstrate intentional or deliberate misconduct by your employer to succeed in an adverse action claim. Rather, if the employer’s action ‘alters the position of the employee to the employee’s prejudice’, it constitutes adverse action. For instance, if you were dismissed for alleged misconduct while you also lodged a workers’ compensation claim, your termination could be viewed as an unlawful action.
Reducing Your Risk of General Protections Violations
To safeguard your rights, familiarise yourself with the workplace rights protected under the general protections legislation. Part 3-1 of the Fair Work Act provides an extensive account of your rights and responsibilities.
Make sure you’re aware of the policies in your workplace related to harassment, bullying, and discrimination, and ensure they’re updated and in compliance with the general protections legislation. Also, remember that if action is taken against you, having documentation explaining the lawful reasons for such actions could provide a foundation to defend your rights.
Take note that compensation for general protections claims is uncapped. This means the risk is greater than an unfair dismissal claim, where compensation is limited to six months’ salary. The court could order reinstatement, injunction, compensation, and penalties as remedies. If you allege adverse action on a workplace right, it’s assumed to be valid unless your employer can convince the court otherwise.
Keep in mind that even if your employer has several reasons for taking action against you, if one of them is a protected workplace right, then your claim will likely succeed. The Federal Court and Federal Magistrates Court can both handle such claims, and both you and your employer can be represented by a lawyer or paid agent in a general protections matter.
An important thing to remember is that you cannot make a general protections claim and an unfair dismissal claim simultaneously. If you fail in one, you likely won’t have time to launch the other.
In case of dismissal, you have 21 days after the date the dismissal took effect to lodge an application with the Fair Work Commission. If you’re not dismissed but believe your rights have been contravened, you can lodge an application up to six years from the date of the alleged contravention.
In case of a dispute, both parties will have to attend a private conference to try and resolve the matter. If no resolution is found, you can choose to proceed to court. This process can be quicker in the Commission than in a court, but it could still be disruptive and costly for all involved.
Key Takeaways for Employees
Always remember that your workplace rights should not influence the decision to terminate your employment. For instance, if your absence due to illness or injury exceeds your accrued leave, the decision to terminate your employment based on this reason is unlawful.
While some of these general protections provisions might seem disadvantageous to the organization, they are designed for your protection as an employee and must be adhered to.
Call Frontline Employment Defenders Now so we can help if you have been bullied or unfairly dismissed on1300 089 353 or visit https://www.fled.com.au