Ward Keller’s expert and very experienced employment law team provides pragmatic, thorough and relevant advice to employers on all aspects of employment in the Northern Territory, from the initial hiring to the ending of an employment relationship and at all points in between, including:
- Advising on and drafting employment contracts
- Advising on other workplace documents e.g. policies and procedures
- Negotiating enterprise agreements
- Terminating employees
- Managing employees’ performance and conduct
- Resolving employment disputes arising out of employment or in the workplace
- Representation for employers in disputes in the Northern Territory and federal courts and tribunals e.g. the Fair Work Commission.
- employment compliance and risk audits and workplace investigations
Adverse actions in the workplace
The Fair Work Act prohibits an employer from taking what is known as ‘adverse action’ against an employee (or a prospective employee) for so-called ‘prohibited reasons’. These are called an employee’s ‘general protections’.
An employer cannot, for example, terminate or stand down an employee, change an employee’s roster or hours of work, or decide not to employ someone because either the employee (or ‘prospective employee’) has exercised or proposes to exercise what is called a ‘workplace right’ or for discriminatory reasons.
Workplace rights are defined quite broadly and include being able to start or participate in a process or proceeding under a workplace law or instrument e.g. the Fair Work Act, an award or enterprise agreement, or being able to make a complaint or inquiry in relation to the employee’s employment.
So if an employer terminates or stands down an employee because that employee asked about their award entitlements or informed the employer that they were about to make a workers compensation claim, then the employer may have offended the general protections afforded to the employee in the Fair Work Act.
Similarly, an employer cannot not take adverse action against an employee because of for example the employee’s physical or mental disability or their family or carer responsibilities.
The general protections apply even if times of economic stress. They apply even if an employer is going through a restructure of its operations for sound business reasons.
The prohibition is made more difficult for employers because of the ‘reverse onus’ in the Fair Work Act. If an employee makes application for a remedy for a breach of the general protections, then, to avoid liability, it will be up to the employer to show that it took the action for reasons other than prohibited reasons.
Adverse actions might also involve separate breaches of the employment contract.
It is very important that employers maintain appropriate records of all decisions made to adversely act against an employee, and carefully and thoughtfully manage the process. This is particularly so in times of economic stress for the business and for the Territory and national economy as a whole.
Employees are an essential part of the character, energy and strength of an employer’s business and the enterprise’s community. For good reasons, employers will also be considering the wider ramifications of ‘adverse actions’ that might be taken including thinking through how else employees might be otherwise gainfully employed or utilise leave.
When an employer wishes to re-organize its business or in times of economic stress, attention turns to how best deploy its workforce.
If an employer has genuinely decided that it does not need the job the employee has been doing to be done by anyone else, it may decide to terminate the employment of the employee ‘for reasons of redundancy’.
If that decision is made, the employer:
- should consult with the employee and consider redeployment options, and
- must give appropriate notice of the termination.
If an employee has been terminated for reasons of redundancy, then the employee must also be paid redundancy pay (set out in the Fair Work Act, or in an applicable award or enterprise agreement).
There are some exceptions to this requirement, including:
- where the termination is due to the ordinary and customary turnover of employment,
- because the employer is insolvent or bankrupt,
- where the employer obtains a reduction of the amount to be paid because it cannot pay the full amount,
- where the employee has been employed for less than 12 months,
- where the employer is a ‘small business employer’ (employs 15 employees or less), and
- in some circumstances, where there is a transfer of business or employment.