Adverse Action: What Is It, How to Prevent It Happening and Tips for Defending Claims Lee Pike Senior Workplace Relations Advocate Nina Hoang Workplace Relations Advocate

Agenda 1. What is adverse action? 2. Mythbusters 3. Case examples 4. Lessons from the courts 5. How to: preventing and defending claims

Introduction

Who can make a claim? Employees (including casuals) and prospective employees Employers and prospective employers Independent contractors and prospective independent contractors Person who has entered into or who has proposed to enter into a contract for services with an independent contractor An industrial association, including an officer or member of an industrial association

General protections claim formula Adverse Action Prohibited Reason General Protections Claim Overview Cases update Case study Workplace right Industrial Activity Discrimination

The key to take away here is that a General Protections claim can only be successful where adverse action was taken BECAUSE of a protected attribute. Because Because Because Becaauuuse…

What is ‘adverse action’? Section 342(1) of the Fair Work Act 2009 (Cth) Dismissal Injuring employee Prejudicially altering employee’s position Discriminating between employees

Potential examples of adverse action Issuing show cause letter Withdrawal of computer access Reducing rostered hours Demotion Abusive language and intimidation Not extending employment to a fixed-term employee on expiration of fixed term Adverse performance rating Refusal to employ a prospective employee Potential examples of adverse action

What is a ‘prohibited reason’? Workplace Right Making a complaint or inquiry Being able to participate in a process or proceedings under a workplace law or workplace instrument Having a role or responsibility under a workplace law or workplace instrument Industrial Activity Lawful participation in industrial association Organising or promoting lawful activities of the association Representing the views of the association Participation in industrial action Act as bargaining representative Discrimination Family or carer’s responsibilities Race Marital status Sex Sexual preference Religion Age Political opinion Physical or mental disability What is a ‘prohibited reason’?

Issued with Certificate General Protections process if parties agree Dismissal FWC Conference Issued with Certificate FWC Arbitration Other adverse action if parties agree FWC conference FCA FCC

Remedies Injunctions to prevent the adverse action; Monetary compensation; Fines; for individuals the maximum fine is $12,600 and corporations the is $63,000; possibility of reinstatement if the claimant was dismissed; and a court may make any order it sees fit to remedy a situation.

EXERCISE // Would this amount to a General Protections claim? An employee returns from maternity leave to a position which has a different reporting structure where the employee now reports to the Operations Manager instead of the General Manager. 1 A female employee is made redundant while on a period of maternity leave. 2 In a redundancy consultation there are two employees and one job remaining. One employee expresses interest in accepting a redundancy due to plans to retire soon. His position is later made redundant. 3

EXERCISE // Would this amount to a General Protections claim? An employee absent from work due to workplace stress was warned by their Doctor not to be in contact with the Employer. The Employer directs the employee to an IME to determine whether they can return to work. After several missed appointments, the employee is terminated for failure to comply with a lawful and reasonable directions. 1 An Employee informed of a delayed start to her 12 hour shift refuses to work as she is taking care of her children immediately before the shift and would be too tired. She elects to take carer’s leave instead. The Supervisor determines that the employee lacks commitment and has displayed a poor attitude, and cancels the scheduled training for upskilling the following week. 2 An Employee continually disagrees with the company about their strategic direction. During a meeting with the CEO, the employee voices concerns with their management style and another employee’ dissatisfaction with a workplace issue. The Employee was terminated two days later. 3 4 5 6

Myth 1: Litigation is costly, so employees are not likely to make a general protections claim

Myth 2: Employees lodging general protections claims need legal representation

Myth 3: There is a 21 day time limit for filing general protections claims

Myth 4: Compensation for General Protections claims are capped at 26 weeks’ salary

Myth 5: Only employees who have completed a minimum engagement period of six months are eligible to access general protections claims for dismissal matters

Case 1 National Tertiary Education Union v Royal Melbourne Institute of Technology [2013] FCA 451 Employers should ensure that: there are objective criteria for restructures and for selecting positions to be made redundant; caution is exercised when retrenching employees who have made complaints to the employer or have unresolved grievances; all relevant obligations under any modern award or enterprise agreement have been satisfied; any requirements that apply under the terms of an employment contract or binding policies and/or procedures have been diligently followed; and there are contemporaneous records of all discussions, and the reasons of the decision makers for retrenching any affected employees.

Case 2 Ibarra Campoverde v Regional Health Care Group Pty Ltd [2017] FCCA 1502 Employers should ensure that: They thoroughly investigate every complaint made by an employee; Investigations should include interviewing any potential witnesses to the complaint; That contemporaneous notes and statements are taken as part of any investigation; That the complainant is kept in the loop about the progress of the investigation and the outcome of the investigation; Of having parallel processes, unrelated issues should be dealt with separately; Have one key clear decision maker; and Reasons for termination are reiterated clearly to the employee, to prevent confusion and unfounded claims.

Case 3 Heraud v Roy Morgan Research Ltd [2016] FCCA 185 Employers need suitable policies and procedures in place to implement decisions such as redundancies (consultation provisions in the Award or your Enterprise Agreement) You should exercise care in implementing restructures and redundancies to avoid decisions made for prohibited reasons; All employees should be consulted about redundancy and redeployment, even if they are absent on leave; Be consistent in your approach to situations; and Separate requests should be dealt with separately, i.e. flexible working arrangements.

Lessons Learned Have objective criteria for redundancies Investigate any complaints Comply with your legal and contractual obligations Keep detailed and contemporaneous records Have only one decision maker Reiterate termination reasons clearly Unrelated issues should be dealt with separately

Defending General Protections claims Educate your Management Team Contact ClubsNSW Keep records Follow policies and procedures Be clear about reasons for your decision Collect evidence early Have a clear ‘decision-maker’

Questions?