Protecting freedom of association, protection from workplace right and relief for persons who have been victimised are the very important reasons behind general protections.

Adverse action was a new section to Australian workplace relations, introduced by the Labor Government in its Fair Work Act 2009. It has been considered now by the courts on several occasions and reflection is now possible on some aspects of the new jurisdiction.

An employer takes adverse action against an employee when the employer takes action that adversely affects the employee for having, or utilising, a workplace right. For example, an employee may make a complaint, say, their wages, and then find themselves dismissed, taken off a roster or not provided overtime.

An employee may make a claim (while employed or after termination, if termination is the adverse action) to the Fair Work Commission under the General Protections section of the Fair Work Act.

A number of these have been decided by the Federal Circuit Court of Australia and by the Federal Court, and even the High Court has recently heard two appeals.

There are two significant issues for employers under the General Protections provided by the Act. The first is the ‘reverse onus of proof’. Once an employee asserts the facts to a requisite standard ie “I was terminated because I complained about a workplace right…”, the onus switches to the employer to prove they did not take the action because the employee had a workplace right, that is, for some other reason such as performance or conduct. The second is the civil penalties of up to $51,000 for breaches of this section of the Act for corporations, as well as smaller fines for individuals ($6600). If an employee is successful, then fines can be awarded by the court.

An employee must make an employer aware, or the employer has to be aware, of the existence of the workplace right. If an employer is entirely unaware of a complaint being made pre termination (or other adverse action) then it is unlikely the employee has been effected because of claiming this workplace right.

What does the court look at to find an employee has been adversely affected for making a complaint? The High Court has held, in the Bendigo case, which held what the Court should be examining is what was in the mind of the decision maker when the adverse action was taken against the employee.

An example is where the Full Federal Court found Qantas coerced and took adverse action against an aircraft engineer who complained about being underpaid while on an overseas posting. He was subjected to adverse action after returning to his home base.

The engineer made a claim for time off in lieu and payment for additional hours worked while overseas. There was a different rate of pay and conditions differed on an overseas posting. Qantas rejected the claim for increased wages. A day later, Qantas suspended all overseas postings of Brisbane-based engineers, while not affecting the postings of other engineers around Australia.

The Union took action in response to the suspension and to a subsequent heated phone call between the engineer and a Qantas manager, in which the manager allegedly said future postings would only be granted to engineers who did not make time off in lieu claims. This was an implied threat to stop making trouble, otherwise he would be offered no further postings.

The Full Court’s decision is significant in clarifying that altering a person’s position to their prejudice is a ‘broad concept’. Even though there were no fixed future overseas postings that were guaranteed by Qantas, the decision by Qantas meant there were no ‘possible’ postings at all, which was a detriment to the engineer. It affected his ability to earn more and to gain overseas experience.

Employer lessons
Firstly, ask yourself, “why am I terminating this employee?” Is it because of an issue they have raised (such as a complaint about wages) or because of their performance or conduct?

Secondly, if an employee claims a workplace right, treat their complaint with respect and follow an agreed dispute resolution process to fix the problem. Don’t threaten the employee with loss of entitlement, be it their job, overtime, or promotion, because they have claimed a workplace right.

Lastly, if an employee states they think they have a right that you have breached, seek advice early.