The general protections provisions of the Fair Work Act 2009 which govern adverse action are designed to protect:
- workplace rights;
- employees from workplace discrimination;
- freedom of association; and
- temporary absence from work due to illness or injury.
Meaning of adverse action
An employer takes adverse action against an employee if the employer:
- dismisses the employee;
- injures the employee in the course of work;
- alters the employee’s position to their detriment; or
- discriminates between the employee and other staff members.
Meaning of workplace right
An employer must not take ‘adverse action’ against an employee because that employee:
- has a workplace right;
- has, or has not, exercised a workplace right; or
- proposes or proposes not to, or has at any time proposed or proposed not to, exercise a workplace right.
An employee has a workplace right if the employee:
- is entitled to the benefit of, or has a role or responsibility under, a workplace law, workplace instrument or order made by an industrial body;
- is able to initiate, or participate in, a process or proceedings under a workplace law or workplace instrument; or
- is able to make a complaint or enquiry:
- to a person or body having the capacity under a workplace law to seek compliance with that law or a workplace instrument, or
- in relation to his or her job.
The following are some examples of circumstances where it is unlawful to terminate an employee’s employment (or take other types of adverse against them), in breach of the general protections provisions relating to workplace rights:
- If the employee makes a complaint about anything to do with their employment, so for example, a complaint about bullying, work-load, incorrect pay, conditions at work, work practices, harassment, being over-worked. There is no limit about what an employee can complain about, provided it is connected to their employment.
- If the employee makes an enquiry (a request for information) about their employment. For example an enquiry about pay, overtime or allowances under an Award, obtaining an employment contract, asking for superannuation payment history. Again, there is no limit about what an employee can enquire about, provided it is connected to their employment.
- If the employee makes a workers compensation claim or has the right to make it.
- If the employee points out unsafe work conditions or has a responsibly to take action under a safety law, or reports unsafe conditions to WorkSafe.
- If the employee has been bullied and has the right to lodge a bullying complaint with the Fair Work Commission.
- If the employee exercises their rights under law, for example, takes sick leave, annual leave, long service leave, reasonably refuses to work on a public holiday, or refuses to work unreasonably overtime.
Businesses must not take any adverse action (which includes termination of employment) against employees because of their race, colour, sex, sexual preference, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, nationality or social origin.
This is subject to a number of limited exceptions, including:
- where the action is not unlawful under a relevant anti-discrimination law;
- taken because of the inherent requirements of the particular position concerned; or
- if the action is taken against an employee by a religious institution, where the action is taken in good faith and to avoid injury to the religious susceptibilities of adherents of that religion or creed.
Temporary Absence From Work
It is a breach of the general protections provisions for a business to dismiss an employee because they were temporarily absent from work due to illness or injury.
It is unlawful to take adverse action against an employee because of their union membership or refusal to join a union.
Contact us for a free discussion
MKI Legal can assist in all aspects of general protections claims at the Fair Work Commission or the Federal Circuit Court.
If you have been dismissed or experienced any adverse action in the workplace, contact us for a free discussion about whether you can lodge a general protections claim.