General Protections and Adverse Action

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The general protections provisions in the Fair Work Act make it unlawful to take “adverse action” against certain persons for prohibited reasons. Adverse action 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 that person on a prohibited basis.

Purpose

The general protections provisions in the Fair Work Act 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 do something 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.

General Protections 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.

Examples of workplace rights include taking sick leave, making a workers compensation claim or an employee making a complaint or inquiry about their employment. Adverse action can’t be taken against employees for exercising any of these rights. 

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.

Claims can be brought from day one of the employment relationship, meaning employees don’t need to have been employed for a minimum period before bringing a claim.

As with unfair dismissal claims, the first step in the process is usually a telephone conciliation hearing (basically a mediation) where the parties are encouraged to settle the matter (usually by an employer offering to pay an employee a sum of money). If the matter does not settle it will proceed to a contested hearing at a later date where a court or the Fair Work Commission will determine whether unlawful adverse action was taken against the applicant.

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Disclaimer

The information provided in these blog articles 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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