Home' Managing Performance : Issue 1 Contents 49
For example, the definition of adverse action is so broadly defined that an
employee need not be dismissed before they are entitled to make a claim –
it is sufficient that they are subject to some other adverse treatment under
the FW Act.
Accordingly, it is important to seek advice prior to termination of employment
as to whether there is any exposure to a successful general protections
application, and what you can do to mitigate against this risk.
What is adverse action?
The FW Act prohibits an employer from taking “adverse action” against an
employee because that employee has a protected attribute or entitlement.
These provisions apply to most public sector (including VPS) employees and
involve the following three elements:
► the employer must have taken adverse action against the employee;
► the employee must have a protected attribute or entitlement; and
► the adverse action must have been taken against the employee because
the employee had a protected attribute or entitlement.
There must be a connection between the employer’s decision to take
adverse action and the employee’s protected attribute or entitlement for a
claim to be successful. On this point, it is important to be aware that these
provisions are subject to a reverse onus of proof, which means that the
employer must disprove (on the balance of probabilities) the allegations
made by the employee by demonstrating that it did not take adverse action
because of the employee’s protected attribute or entitlement.
This can be difficult without clear evidence from the decision-maker,
supported with relevant documents, demonstrating why the employee’s
employment was terminated. We recommend that you seek advice at an
early stage as to whether you can meet this onus of proof.
What types of conduct constitute adverse action?
Adverse action is broadly defined under the FW Act and is not limited
to simply terminating an employee’s employment. Instead, conduct that
is deemed to constitute adverse action includes doing, threatening or
organising any of the following:
► dismissing an employee;
► injuring an employee in his or her employment;
► altering the position of an employee to the employee’s prejudice; and
► discriminating between the employee and other employees of the
employer for a prohibited reason.
Adverse action can be taken in a range of ways, for example by demoting
an employee or by denying them a training or promotion activity. It may even
include steps taken or things done by an employer during an investigation or
disciplinary procedure against an employee.
Where a former employee considers that their employment was terminated
due to their protected attribute or entitlement, that employee may make a
general protections application. Effectively, the employee is arguing that their
employment was terminated due to some prohibited reason as opposed to
any valid reason that the employer may assert.
Employees may make a general protections claim where the alleged conduct
does not result in dismissal. Further, the general protections provisions
prohibit other types of conduct, such as coercion, undue influence or
pressure and misrepresentations. It is important for employers to be aware
of how to minimise exposure to these sorts of applications.
What attributes or entitlements are protected?
The FW Act outlines that the protected attributes or entitlements for which
an employer is prohibited from taking adverse action against an employee,
include the employee’s workplace rights, industrial activities and other
protected grounds (including race, sex, age and disability etc).
An employer must not take adverse action against an employee because of
a “workplace right” that the employee has, or because the employee has, or
proposes to, exercise their workplace right.
A “workplace right” is a broad term that includes a person:
► having the benefit of, or having a role or responsibility under a workplace
law, workplace instrument or an order made by an industrial body (such
as the FWC);
► being able to initiate in or participate in a process or proceedings under a
workplace law or a workplace instrument (ie. a hearing conducted by the
FWC or protected industrial action); or
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