Home - How to defend against an adverse action claim

UpdatesNov 06, 2014

How to defend against an adverse action claim

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.

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:

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:

Common examples of protected activities include:

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:

Regards,

Charles Power
Editor-in-Chief

Employment Law Practical Handbook

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