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Unraveling the Complexities of Adverse Action Claims in Australia: An All-Inclusive Guide

The necessity for Australian employers to have a solid understanding of adverse action and general protections claims cannot be overstated. While the possibility of unfair dismissal claims is often widely acknowledged, the risks associated with adverse action against an employee, or infringing on general protections, can easily be underestimated.

The Fair Work Act 2009 (Cth), an integral legislative framework, provides extensive protection not just for employees, but also those in recruitment stages and even independent contractors. Interestingly, this law also covers employers, although claims from them are less common.

Who Benefits from this Legal Safety Net? Under the legislative framework, the scope of protection is broad and includes:

Employees and employers Independent contractors and principals Industrial associations (e.g., trade unions or their members) This blog will particularly delve into the subject of adverse actions against employees.

Decoding General Protections The Act offers several safeguards to employees, which include but are not limited to:

Freedom to exercise workplace rights Freedom to participate or abstain from industrial activities Protection against discrimination Protection against fake contracting arrangements Protection from coercion related to the exercise of workplace rights Protection from unfair influence on forming agreements under National Employment Standards or concerning industrial agreements Protection from dismissal due to temporary absence because of illness or injury Any adverse action against those exercising or intending to exercise their workplace rights is strictly forbidden.

Exploring Workplace Rights Workplace rights encompass a wide array of protected work-related rights, including:

Rights derived from benefits under a workplace law or order from an industrial body The right to carry out duties under a workplace law or an industrial body The right to initiate or partake in a process or procedure under a workplace law or instrument The right to make a complaint or inquiry to ensure compliance with a workplace law or instrument The right to make a complaint or inquiry concerning employment Demystifying Adverse Action Illegal adverse action arises when an employee faces detrimental actions due to prohibited reasons, such as inhibiting their exercise of a workplace right. This can appear as:

Employee dismissal Inflicting harm, including psychological, on the employee in their employment Adverse alteration of the employee’s role Discrimination between the employee and other staff members For job applicants, adverse action could manifest as denial of employment or discrimination in job offer terms.

Under Section 361 of the Act, an employer has the burden of proof reversed when defending against an adverse action claim. This means unless the employer can prove otherwise, the court assumes the action was taken for the reasons alleged.

The Impact of Missteps If an employer engages in adverse action, they might face liability for a general protections claim. Similar to an unfair dismissal claim, a general protections claim is initially presented to the Fair Work Commission. If not resolved, it may then progress to the Federal Circuit and Family Court or Federal Court of Australia.

Significantly, unlike unfair dismissal claims, there is no limit on compensation awarded in a general protections case. Moreover, the Court can enforce civil penalties on not just the employer but also any individual involved in the violation.

To succeed in a general protections claim, an employee must demonstrate that they exercised a workplace right, experienced adverse action consequently, and there exists a causal link between the two. Once proven, the burden then falls on the employer to prove that the action wasn’t taken for the reasons put forth by the employee.

Knowing Your Terrain Although many disputes are usually resolved through negotiation, those that reach court have resulted in considerable awards. Remember, any employee, regardless of their tenure or income, can bring a claim in this jurisdiction. Therefore, for employers, understanding this legal environment is crucial to effectively circumnavigate potential legal pitfalls.

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