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.