What is adverse action?

Given the increasing number of claims brought under the general protection provisions, set out in the Fair Work Act, it is beneficial for employers to have a basic understanding of what is meant by ‘general protections’ or ‘adverse action’.

Put simply, the general protection provisions mean that a person may not take adverse action against another person for exercising a workplace right. The two critical terms to understand here are ‘adverse action’ and ‘workplace right.’ Adverse action includes, but is not limited to, dismissal, discriminatory treatment and a refusal to offer employment. ‘Workplace rights’ is an umbrella term that encompasses rights deriving from awards, agreements, legislation and so forth.

In practice these provisions provide very broad protection and potential recourse to employees and employers in a number of situations. Adverse action claims may be brought against an employer where an employee is denied a promotion, or a prospective employee is not offered a job, based on their sex or race or because they are pregnant or because they have joined a union. A different, but not uncommon scenario, includes an employee being dismissed while temporarily absent from work due to illness or injury.

As demonstrated by these examples, there are many different types of adverse action claims. Good workplace policies and procedures will help to ensure both employers and employees understand their rights and responsibilities. They may also help prevent potential adverse action claims, or at least provide evidence of correct process and procedure in the event that an adverse action claim is brought.

Sarah Waterhouse, Paralegal, BlandsLaw

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