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ADVERSE ACTION

Adverse Action is an action taken by a person or industrial association that is deemed unlawful under the General Protections provisions of the Fair Work Act 2009.

ADVERSE ACTION

Such unlawful action includes dismissing or refusing to employ a person, and discriminating against the person or otherwise injuring the person in their employment.

To put it very simply, the Act provides that an employer must not treat you adversely because of the fact that you have a workplace right or because you have elected to exercise a workplace right.

A person is taken to have a ‘workplace right’ if they (for example):

  • have a benefit, role or responsibility under a workplace law or industrial instrument;
  • can take part in a process or proceeding under a workplace law or industrial instrument, including for example:
    • a court proceeding;
    • a conference before the Fair Work Commission;
    • terminating an individual flexibility arrangement; or
  • are able to make a complaint or inquiry in relation to their employment or to a body that has the power to seek compliance with a workplace law or industrial instrument.

An employer will have treated a person adversely if the person exercises (or does not exercise) a workplace right and, consequently, the employer (for example):

  • dismisses the employee;
  • demotes the employee;
  • alters the position of the employee to the employee’s prejudice; and/or
  • discriminates between the employee and other employees;

IMPORTANT FACT

For matters involving a dismissal, you only have 21 days from the date of dismissal to lodge a general protection application with the Fair Work Commission. This timeframe is strictly enforced. Only in exceptional circumstances will the Fair Work Commission grant an extension of time to file an application.

Ready to tell us your story?

If you think you might have suffered an Adverse Action at your workplace please contact us at Anderson Gray Lawyers for a confidential, no obligation discussion about your situation.

A workplace right will also be offended if an employer (for example):

  • coerces an employee, or other third party to exercise or not exercise a workplace right;
  • exerts undue influence or pressure on an employee to:
    • make or not make an arrangement under the National Employment Standards;
    • make or not make an arrangement under a term of an Award or enterprise agreement;
    • agree to or terminate an individual flexibility arrangement;
    • agree or not agree to a deduction from amounts payable to an employee in relation to the performance of work;
  • knowingly or recklessly makes a false or misleading representation about a workplace right;
  • unlawfully discriminates against an employee; and/or
  • dismisses an employee for being temporarily absent from work because of an illness or injury.

ELIGIBILITY

To be eligible to bring a general protection application, you must::

  • be a person who has a ‘workplace right’;
  • have taken action to either exercise (or not exercise) that workplace right;
  • have taken action to either exercise (or not exercise) that workplace right;
  • been adversely treated because o your decision to exercise (or not exercise) that workplace right;

IMPORTANT FACT

If you were to pursue an application that had no reasonable prospects of success or it was made vexatiously or without reasonable cause, then your employer could be successful in obtaining a costs order against you.  This means that you would be liable to pay their costs for defending your claim.

Ready to tell us your story?

If you think you might have suffered an Adverse Action at your workplace please contact us at Anderson Gray Lawyers for a confidential, no obligation discussion about your situation.

‘CAUSAL LINK’

In order to prosecute a general protections application, there is no need for there to be a ‘causal link’ between the workplace right and the adverse action taken by the employer.  The High Court has stated that it is a question of fact as to whether a particular action taken by an employer was taken because of a proscribed reason or for reasons which included a proscribed reason and it is the motivation for the action that is important to determining these types of claims.

WHAT HAPPENS NEXT (assuming we think you have a claim)

After your Application involving for a breach of the general protections has been filed with the Fair Work Commission, your employer will (generally) have seven days to provide a response.

The parties will then attend a conciliation conference to try and resolve the application. This conference will be by telephone and the conciliator will be appointed by the Fair Work Commission.

Please note, if after filing the unfair dismissal application your employer raises a jurisdictional objection, then this is likely to increase the legal costs associated with your matter.

CAN I FILE THIS TYPE OF APPLICATION WHILST STILL EMPLOYED?

Yes, the general protection provisions of the Act allow for an application to be filed whilst an employee is still employed.

OUTCOME

We cannot guarantee that your adverse action application will be successful, either by way of obtaining a settlement or an order that you be reinstated or compensated (or both).

However, our team of expertly trained lawyers will endeavour to get you the best possible outcome with respect to your particular circumstances.

You need to be realistic with what can be achieved.

Ready to tell us your story?

If you think you might have suffered an Adverse Action at your workplace please contact us at Anderson Gray Lawyers for a confidential, no obligation discussion about your situation.

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