Adverse action is action that is unlawful if it is taken for particular reasons. It is defined under s342 of the Fair Work Act and includes dismissing or refusing to employ a person (including employees and contractors) or otherwise negatively impacting upon that person in the workplace on a prohibited basis.

Purpose

Adverse action, also referred to as general protections, have been introduced to:

  • Protect workplace rights;
  • Protect freedom of association;
  • Provide protection from workplace discrimination; and
  • Provide effective relief for persons who have been discriminated against, victimised, or have experienced other unfair treatment.

Examples of Adverse Action

Adverse action covers acting, organising or threatening to and includes:

  • An employer dismissing an employee, altering their position to their detriment, or discriminating between them and other employees;
  • An employer refusing to employ a prospective employee or discriminating against them in the terms and conditions the employer offers;
  • A business terminating a contract with an independent contractor, altering their position to their detriment, refusing to use their services or to supply goods and services to them, or discriminating against them in the terms and conditions the principal offers to engage them on; or
  • An employee or contractor ceasing to work for an employer or taking industrial action against the employer.

Adverse Action Claims

In order to make a general protections claim under the Fair Work Act employees simply need to allege that they were “adversely affected” by a management decision that has been made because of their workplace rights, or because they possessed a discriminatory attribute, such as their race, sex, age, or disability.

Claims are possible from prospective and current employees as well as contractors. Unlike unfair dismissal claims, damages are uncapped and there is a reverse onus of proof, meaning that employers are effectively guilty of adverse action until they can demonstrate the genuine and non-discriminating reasons for their decision.

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Disclaimer

The information provided in this knowledge base article is general in nature and is not intended to substitute for professional advice. If you are unsure about how this information applies to your specific situation we recommend you contact Employment Innovations for advice.

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