By Charles Power

[Ed Note: In recent years, adverse action claims against employers have been steadily increasing. It seems that employees are turning to adverse action claims when they don’t feel that they can make an unfair dismissal claim.

Adverse action is any action that disadvantages an employee or alters their position unfavourably. For example, you will be taking adverse action against an employee if you:

• alter the employee’s position to their prejudice;
• discriminate against the employee; or
• discriminate against a prospective employee in their employment terms and conditions.

Remember that adverse action is not always unlawful. It will only be unlawful if it is taken against an employee because they have an attribute or engage in an activity that is protected under the general protections provisions in the Fair Work Act 2009 (Cth) (FW Act).

That said, adverse action claims are not easy to defend even if you did not take adverse action for an unlawful reason.

Read on to find out why.

Until next time…]

How to defend against an adverse action claim

Under the general protections provisions in the FW Act, employees are protected from having adverse action taken against them for possessing certain attributes or engaging in certain activities.

Common examples of protected attributes include:

• the entitlement to a benefit of a modern award or enterprise agreement;
• the entitlement to the benefit of a law that regulates the employment relationship, e.g. leave;
• a role or responsibility under a workplace law or an enterprise agreement; and
• having or not having union member or officer status.

Common examples of protected activities include:

• requesting a flexible working arrangement;
• making, varying or terminating an enterprise agreement;
• making a complaint or inquiry in relation to employment; and
• organising, promoting, encouraging or participating in a lawful activity organised or promoted by a union.

Of course, you are entitled to make changes to your workplace and these changes may result in adverse action against an employee. Such adverse action will not be unlawful if it was not made because of a protected attribute or activity.

Why adverse action claims are difficult to defend

Unfortunately, proving this is difficult for employers. This is because if an employee claims that you have taken adverse action against them, the reverse onus of proof applies – that is, you have the burden of proving that the complaint is not justified.

Essentially, the Fair Work Commission will assume that you took the adverse action for an unlawful reason unless you can prove that you didn’t. Rather than the employee having to prove that that you took the action for an unlawful reason, you must prove that you did not.

Tips for defending an adverse action claim

You will be better placed to defend an adverse action claim if you have:

• complied with your business’s policies, procedures and practices when taking adverse action, i.e. you have been consistent in your approach;
• removed the person who decides to take the adverse action from your complaint-resolution process, i.e. you have made sure the decision-maker is impartial;
• established, communicated and documented the reasons for taking adverse action at the time you took the action; and
• ensured that the decision-maker is able to provide a convincing explanation as to why the adverse action was taken. They should be able to communicate:
  • that the reasons alleged by the employee were not a factor in the decision to take adverse action;
  • what the real reasons were for taking the adverse action; and
  • that they would have taken the same action in relation to an employee in the same or similar circumstances who did not have the protected attribute or engage in the protected activity alleged to be the reason for the decision.