ADVERSE ACTION HAS NO PLACE AT WORK
Adverse action and how to avoid it
Adverse action is one of the most serious issues that can occur in a workplace. Despite this, an alarming number of people are unaware of what the term actually means and are therefore unable to take proactive steps toward preventing it.
Adverse action is simply any action that affects a person (employee, employer, contractor) in an adverse way. This could include demotion or threat of demotion, dismissal or threat of dismissal, denial of a wage increase or bonus payment, or the provision of a written warning.
Such actions are unlawful under the Fair Work Act 2009 (Cth) (the Act), if the reason for taking that action was related to a protected reason. These protections are known as the ‘General Protections’.
General protections include:
Workplace Rights: a person must not take adverse action against another person because the other person had a workplace right, has or has not exercised a workplace right or proposes or proposes not to exercise a workplace right.
Industrial Activity: a person must not take adverse action against another person because that person is or is not, or was or was not, an officer or member of an industrial association (i.e. a trade union); or engages, or has at any time engaged or proposed to engage, in industrial activity, or does not engage, or has at any time not engaged or proposed to not engage, in industrial activity.
Discrimination: an employer must not take adverse action against an employee or prospective employee because of the person’s race, colour, sex, sexual orientation, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin.
Temporary absence – illness or injury: an employer must not dismiss an employee because the employee is temporarily absent from work because of an illness or injury.
Examples of adverse action
An adverse action can include any disciplinary action taken against a member of staff such as;
- Demotion (including a decrease in pay and responsibilities)
- Change of job title and standing (e.g. from Service Supervisor to Service Technician)
- Reducing work hours
- Being overlooked for a promotion
- Even giving an employee a written warning for a prohibited reason
Why it is important to get it right
Adverse action is one of the most serious breaches of the Fair Work Act and can attract significant civil penalties.
Contraventions of the General Protections can be dealt with by the Fair Work Commission or be taken to the federal court.
Section 361 of the Act also establishes a reverse onus of proof meaning that it is assumed the reason for taking the action was for a prohibited reason, and the employer must establish why the adverse action was taken. This is an important point that should not be understated. It is for this reason that employers should take care to provide clear and precise reasons to employees (and prospective employees), why they are taking certain actions, or at the very least document their actual reasons internally.
Getting professional advice that you can trust
There are more than a few difficult situations that can arise in a workplace.
Dealing with difficult situations can become even more challenging when there is confusion or misunderstanding about the relevant rules or laws that may impact your decision-making.
To avoid making unnecessary mistakes with the handling of your workplace issues, it makes sense to talk to an expert team who can guide you through the process. That team of experts is Clyde Industrial.
With the best professional advice, you can take the right path and get back to what you need to do to make your business a success.
For quality service that is cost-effective and accessible whenever you need it, your outlook can be clearer and brighter than ever.