By Charles Power

The Fair Work Act 2009 (Cth) makes it unlawful for an employer to take “adverse action against an employee because of a protected attribute” (e.g. union membership) or because they are engaging in a “protected action” (e.g. making a complaint relating to their employment).

In Rangi v Kmart Australia (2018) the Court had to consider whether a worker’s allegation that his employer failed to promote him could, if established, amount to adverse action.

An employer takes adverse action against an employee if the employer “alters the position of the employee to the employee’s prejudice”.

This requires a “before and after” test – i.e. is the employee in a worse situation after the employer’s actions than before them? Is that because of the employer’s actions? Were those actions intentional in the sense that the employer wanted to make the employee worse off?

For instance, a failure to make an employee redundant is not adverse action, even though the employee is denied redundancy entitlements, because the status quo remains after the employer’s inaction.

In Rangi, the Court concluded an alleged failure to do something, such as promote an employee, is not adverse action. Of course, the situation may be different if the employer had an obligation or duty to act but did not perform that obligation or duty.