Increase in adverse action claims under the Fair Work Act 2009

Employers should be aware of the likely increase in the number of adverse action claims under the Fair Work Act 2009 (FWA).  Adverse action claims are broad in scope, place a reverse onus on employers and are simple to commence.

Unlike unfair dismissals, adverse action claims:

• are not limited by the high income threshold ($113,800)
• can result in penalties in addition to compensation
• compensation to the applicant can exceed 6 months wages

Breadth of Scope

A workplace right is defined under the FWA as including rights under workplace laws, the rights under the anti-discrimination laws and even the right to the right to complain in relation to their employment.  An adverse action includes a mere threat of disciplinary action or even a request to respond to an allegation.

Reverse Onus

Once an employee alleges that they have been adversely treated the onus is placed on the employer to prove that the treatment was not because of a workplace right.  In a recent unlawful termination case under the now defunct Workplace Relations Act 1996, which involved a similar reverse onus, a Federal Court judge could not decide between the conflicting stories of the applicant and the employer and therefore found for the applicant.

Simplicity

Adverse action applications are a no-cost jurisdiction and commence with a conciliation conference at Fair Work Australia within a few weeks of being filed.

Lessons for Employers

It is now imperative that records are kept in relation to reasons for decisions in the workplace which could conceivably adversely affect an employee.  Without documentation showing the real reason(s) for a decision, a Judge (the Federal Court or the Federal Magistrates’ Court) is likely to find that the reason was the one attributed by the employee.

For more information on adverse actions or the Fair Work Act 2009, please contact one of our Workplace Relations lawyers.

Author: Charles Cody