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An important reminder about adverse action

Over the past week, the team here at Workforce Guardian has agreed to represent three new clients facing claims of 'adverse action' from current or former employees. While most employers have at least a basic understanding of 'unfair dismissal' claims, far fewer appear to be aware of the risks associated with adverse action, so it's worth taking another look at these potentially devastating claims.

Put succinctly, the Fair Work Act 2009 makes it clear that employees enjoy certain, fundamental 'workplace rights'. For example, employees have a right to join (or not join) a trade union, a right to be temporarily absent from work, and a right not to be unlawfully discriminated against in the course of their employment. If an employer takes, or even threatens to take, any form of 'adverse action' against an employee because they exercise a workplace right, they face the risk of extremely expensive, time-consuming, and complex legal action.

All of the following actions taken by well-meaning but unsuspecting employers, could result in an adverse action claim:

  • > Reducing, or threatening to reduce an employee's working hours following receipt of a complaint from them about the workplace
  • > Taking, or threatening to take, disciplinary action against an employee because they refuse to work overtime
  • > Dismissing, or threatening to dismiss, an employee because they are pregnant, have converted to a new religion, have had children, or divorced

As the above (entirely non-exhaustive) list demonstrates, almost anything said or done by an employer in relation to an employee's exercise of a workplace right could give rise to an adverse action claim.

There are three specific reasons why adverse action claims should keep employers awake at night:

  • a) employees are protected from adverse action right from the start, there is no 'minimum employment period' that must be completed to qualify for protection as there is in the case of unfair dismissals
  • b) there is no maximum cap on compensation, and
  • c) most worryingly of all, these claims invoke a reversal of the usual 'onus of proof'. In other words, once an employee (or ex-employee) claims they been the victim of adverse action, their employer is effectively guilty until proven innocent.

Perhaps now you can more readily understand why unions and no-win-no-fee law firms often prefer lodging an adverse action claims over the more traditional unfair dismissal claim.

There's one thing almost every client facing an adverse action claim has in common: they almost all had never heard of 'adverse action' until the claim was lodged against them or, if they had heard of it, they genuinely believed it would never happen to them.

Published in Swtizer Daily: Friday, June 20, 2014

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