Adverse Employer Action Legal Advice

Employers are prohibited from taking adverse action against an employee because of their workplace right. This includes adverse action taken to prevent an employee from exercising this right, or because they have exercised this right.

Under section 341 of the Fair Work Act 2009 (Cth), a person has a workplace right if the person:

• is entitled to the benefit of workplace law, workplace instrument or an order made by an industrial body;
• has a role or responsibility under a workplace law, workplace instrument or order made by an industrial body;
• is able to initiate or participate in a process or proceedings under a workplace law or instrument;
• is able to initiate or participate in a process or proceedings under a workplace law or instrument;
• is able to make a complaint or inquiry to a person or body with the capacity to seek compliance with a workplace law or instrument; or
• is able to make a complaint or inquiry concerning his or her employment.

Adverse action occurs when your employer alters your employment to your disadvantage. Generally, this will involve conduct which negatively impacts your employment such as being issued a warning, having your shifts changed, reductions in your level of responsibility or status, suspension, or being subjected to a disciplinary process. Your employment will be deemed to have been altered to your disadvantage if it is found that:

• you are in a worse position than before your employer’s acts;
• the worsening of your employment was caused by your employer’s acts; and
• your employer’s acts were intended by them to cause the deterioration in your employment

Adverse action includes when your employer has ‘injured’ you in your employment. An injury refers to the deprivation of your rights, under your contract of employment, or some sort of financial injury. This may include your employer reducing your pay, standing you down, transferring you to a different worksite or reducing your position.

Injury may also include where your employer has singled you out from other employees, such that you are treated differently from usual, in a manner which affects your employment.