To minimise the risk of an ‘adverse action’ claim, employers must understand the ‘general protections’ provisions of the Fair Work Act 2009 (Cth). These provisions protect individuals from unjust treatment in the workplace like being fired for making certain complaints or discriminated against due to age. Breaches can lead to claims for reinstatement and compensation. Employers should proactively manage their workplace and implement policies and training to minimise the risk of such claims.
Understanding General Protections
General protections comprise a set of rights afforded to employees, prospective employees, and some independent contractors to ensure they are not subjected to detrimental treatment or discrimination due to certain factors or protected attributes. An employer must not take ‘adverse action’ against an individual for a ‘prohibited reason’. The categories of general protections include:
Discrimination
A general protections claim may be made by an employee whose employer has taken adverse action against them because of a ‘protected attribute’. The protections apply to employees and potential employees and are based on:
- race, colour, religion, social origin or national extraction
- sex or sexual orientation
- age
- physical or mental disability
- marital status, family or carer’s responsibilities
- pregnancy, breastfeeding
- subjection to family and domestic violence
Workplace Rights
An employer must not take adverse action against an employee because the employee has, exercises, or proposes to exercise a workplace right. Workplace rights include benefits under a workplace law, instrument or order made by an industrial body. Exercising a workplace right might include:
- joining a union
- participating in proceedings under a relevant workplace law or instrument
- making a complaint or enquiring about workplace conditions
Industrial Activities
Employees have a right to participate in (or choose not to be involved in) industrial activities and associations, including unions and employer associations. Industrial activities include:
- being a member of a union or an industrial association
- establishing a union or employer association
- organising or promoting lawful activities of a union or employer association
- complying with a legal request made by a union or employer association
- arranging to be represented by a union or employer association
Absence due to Illness or Injury
An employee’s temporary absence from work due to an illness or injury also falls within the general protections provisions.
What is Adverse Action?
Adverse action means doing, threatening or organising to do something that has a detrimental effect on a person’s employment. Examples include:
- dismissing an employee
- injuring or harming an employee
- demoting an employee or overlooking an employee for promotion
- treating an employee differently from other employees
- cutting shifts or hours
- not hiring a potential worker
- withholding employee entitlements
What is not Adverse Action?
Not all action taken against an employee will constitute adverse action in breach of the general protections provisions and each case must be assessed on its merits. For example, a negative performance review delivered fairly and in compliance with any laws regulating disciplinary processes, on its own, is unlikely to be adverse action. Similarly, offering a lower salary commensurate with a job applicant’s level of skill and experience is not necessarily adverse action. Importantly, each case must be assessed in consideration of the specific circumstances.
General Protections Claims
Where adverse action is taken against an individual for a prohibited reason, they may have a right to make an adverse action claim (general protections claim) to the Fair Work Commission.
Remedies for a successful adverse action claim can vary depending on the type of claim and the circumstances and may include reinstatement, compensation and a range of other orders. Employers in breach of the Fair Work Act may also face civil penalties.
Under the legislation, any alleged adverse action taken against an employee for a specific reason will be deemed to have been taken for that reason unless the employer can prove otherwise. Thus, a reverse onus of proof applies in that the employer will be presumed to have taken the alleged action for the alleged reason unless it can demonstrate otherwise.
Risks for Employers
The general protections provisions cast a wide net and the potential for individuals to make an adverse action claim is a risk that employers should carefully manage. The category of prohibited reasons is considerable with many scenarios in which adverse action might occur in the workplace. A potential claim could originate from as early as interviewing a prospective employee, or from issues relating directly to an employee’s rights or entitlements. Claims could involve matters relating to how work is performed or arise due to action taken because of certain protected attributes of an employee.
An adverse action claim for dismissal, unlike claims for unfair dismissal, may be made regardless of the employee’s length of service with the employer and how much they earn. Further, while damages for unfair dismissal claims are limited, damages for dismissal claims under the general protections provisions are uncapped.
Conclusion
General protections laws help safeguard workers’ rights and promote fair and equitable treatment in the workplace. By understanding these laws and implementing compliant workplace policies and procedures, employers and managers can ensure that their employees’ rights are protected and help minimise the risk of an adverse action claim.
A comprehensive approach can help identify and manage potential issues. Systems and processes should consider the entire employment cycle – best practices for interviewing and recruiting, how the employer responds to employee complaints and grievances, and how employee performance, discipline and termination are managed. Organisations are encouraged to seek professional advice before taking disciplinary action to ensure it is carried out fairly and in compliance with relevant workplace laws.
This is general information only and does not constitute legal advice. We strongly encourage employers to seek professional assistance specific to the circumstances. If you or someone you know wants more information or needs help or advice, please contact us on (02) 5127 5261 or email [email protected].