What Constitutes Adverse Actions & How Can Employees File Adverse Action Claims?

The Fair Work Act protects employees from adverse actions by an employer.

An employer is said to have taken adverse action against an employee when they dismiss an employee, injure them in their employment, alter the employee’s position to their detriment or discriminate against the employee.

Employees are only protected from adverse action based on certain protected traits covered by the Fair Work Act.

An employee who feels aggrieved about the adverse action by an employer can file an application with the Fair Work Commission and/or the Federal Court or the Federal Circuit Court to seek orders to stop the employer carrying out further adverse action. If the employer has already carried out the adverse action, the employee may apply for orders to find that an adverse action has been committed and to order the employer to pay penalties, compensation or damages and/or order the reinstatement of the employee.

For further visit the general protections page.

Case Example – Wesbeam Pty Ltd

In the case of Trego v Wesbeam Pty Ltd [2019] FCA 1030 (2 July 2019), a factory hand began work on 29 October 2018 at a factory that prepared and packaged timber for sale. A few weeks after he was employed, the factory hand took on the role of “leading hand” on the shop floor for the day shift. He was also allowed to work overtime such that he received about $1800 pay every fortnight.

The factory hand enjoyed work at the factory and socialised with work colleagues after their shift. He had just moved to Melbourne from Western Australia and did not know anyone else. He also enjoyed the pay he obtained because he was able to meet child support payments for his children.

The factory had about 15 employees and it was a non-unionised workplace. Sometime on 25 March 2019, the Human Resources Manager met with the employees and informed them that the employer wanted an enterprise agreement to cover the shop floor employees. The Human Resources Manager told the employees that they could bring in a union if they wanted help.

The factory hand was elected by the employees as their employee representative. However, on 17 April 2019, representatives of the union told the employees that the General Manager was angry that the union was involved in negotiating for an enterprise agreement.

The employee’s position of employee representative in the enterprise bargaining process is a protected workplace right under the Fair Work Act. It is unlawful for an employer to take adverse action against an employee because of that right.

Also, being a member or not being a member of a union is a protected right under the Fair Work Act. It is illegal to take adverse action against an employee on that basis too.

After this, the employer no longer allowed the factory hand to work overtime resulting in a substantial reduction of his income from $1800 every fortnight to about $700. At meetings with the General Manager, the factory hand felt harassed because of his union involvement.

On 3 May 2019, another employee was appointed leading hand even though the factory hand had been discharging some functions of leading hand since he had been employed, and despite the factory hand having inquired about his eligibility for the promotion.

On 6 June 2019, the factory hand was called to a meeting and was given a verbal warning because he talked too much about the union during working hours. He was accused of having “bullied” a colleague to join the union but the colleague he was alleged to have bullied declared that he was not threatened at all by the factory hand. When the factory hand sought to obtain a copy of his performance review, he was not provided with a copy.

The next day, the factory hand spoke with an office clerk and told the office clerk that he felt he was being punished for speaking about the union. A few days later, the factory hand was stood down with pay pending an investigation of an allegation by the office clerk that the factory hand had threatened her. The Human Resources Manager informed him that a CCTV footage of the incident proved that the factory hand threatened the office clerk. The factory hand asked for a copy of the CCTV footage but this was not provided to him.

The factory hand was instructed to submit a written response to the allegations by 11 June 2019. The factory hand by this time had asked for the assistance of the union. The union advised the factory hand to request for a written notice of the allegations against him so that he can properly respond. He was not provided a written notice of the allegations against him.

On 13 June 2019, the factory hand was called to a disciplinary hearing and the factory hand was told that his employment had been terminated because the factory hand “pushed” the office clerk after engaging in other threatening behaviour toward her. The factory hand received a letter of termination on 18 June 2019.

The factory hand and the union filed an adverse action claim seeking an interlocutory order to reinstate the factory hand to his employment pending trial of his adverse claim. The only question before the court was whether or not the factory hand had proven that he ought to be reinstated to his employment.

The Court found that the disciplinary action, the performance review and the termination of the factory hand was not coincidental but was part of the effort of the employer to stop the shop floor from being unionised. There was evidence that the colleague of the factory hand who had been appointed as leading hand was offered the position in exchange for resignation from the union. On the part of the union, they asked the court to stop the employer from pressuring the employees on the shop floor from resigning from the union.

The court found that there was evidence that an adverse claim had been committed by the employer and ordered the employer to reinstate the employer to his former position.

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