1. 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

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

3. Introduction

4. 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

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

6. 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…

7. 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

8. 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

9. 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’?

11. 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

12. 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.

13. 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

14. 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

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

17. Myth 2: Employees lodging general protections claims need legal representation

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

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

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

21. 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.

22. 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.

23. 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.

24. 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

25. 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’

26. Questions?