Adverse Action
While most of the debate around the government’s new IR laws centred on rolling back unfair dismissal laws, hardly anything was said about new provisions allowing employees to sue their employers on a number of grounds.
The provisions are based on freedom of association and unlawful termination provisions. The protections apply to all employees for a broader range of rights and cover action falling short of dismissal. This includes actions that adversely affect the employee’s position, injuries or discriminates against the employee and even covers refusing to employee someone and threats to take adverse action.
Employees whose previous rights may only have extended to an unfair dismissal claim after termination may have a cause of action under this provision while still employed. There is now a greater scope for outside intervention in an existing and ongoing employment relationship.
The rights that give rise to this type of claim include having a right, role or responsibility and making complaints or inquiries. Making complaints or inquiries is an interesting inclusion as, unlike the former regime, there is no restriction on who the complaint is made to. A complaint made to the employer or a union would give rise to a claim. Previously, these types of more informal complaints were excluded.
Claims under these provisions have a reverse onus of proof. If an employee claims they were subject to adverse action for a prohibited reason the employer must prove the action was not taken for that reason. This places the employee in a better position than if they were only able to make an “unfair” dismissal claim.
Where the adverse action falls short of dismissal, an application may be made to Fair Work Australia (FWA) to intervene on a dispute basis. If this is not successful, an application can be made to the court for intervention.
The potential consequences of this provision are profound. The scope of actions taken by an employer that can be litigated by an employee has expanded greatly. The reasons for the action have also expanded.
Example: an employee queries his/her rate of pay with the HR department. After the inquiry the employee’s hours are changed. The employee believes the change is related to their inquiry. The employee can make a claim under this provision for intervention from FWA or the court. You would have to positively prove the change was not because of the inquiry to prevent intervention, such as an order to change the hours back or a fine.
Source CCH
