Adverse action tested under the Fair Work Act 2009

Under the Fair Work Act 2009 (the Act), employees are able to make an ‘adverse action’ claim if an employer has breached or has threatened to breach a ‘workplace right’ as defined under section 341(1) of the Act. 

'Workplace rights' are entitlements, benefits or responsibilities which are given to an employee under a workplace law or instrument, or under an order by an industrial body.  ‘Workplace rights’ can include activities such as being a member of a union, participating in protected industrial action or making, varying or terminating an enterprise agreement. 

A recent decision involving a Victorian public servant has examined the scope of the ‘adverse action’ provisions of the Act.

The employee, who was also a union delegate, sent an email to members of the union employed by the employer alleging misconduct by unnamed co-employees concerning alleged creation of false documentation to satisfy the upcoming audit of the employer. 

As a consequence, the employee was asked by his manager to identify the informants who had reported the allegedly false documentation.  The employee declined to provide the information as this would indentify the informants as union members.  The employer also sought more details of the allegations, but received no cooperation from the employee.  The employer then suspended the employee from his duties and directed the employee not to attend the employer’s premises until such time as the issue was resolved.  The employee was required to show cause why he was not guilty of serious misconduct by not reporting the allegations to his manager nor cooperating in the investigation process. 

The employee subsequently claimed in the Federal Court that his employer took this disciplinary action against him because of his activities as a union representative.  The employee claimed that this was ‘adverse action’ contrary to the Act.

The employer argued its action was due to the employee’s contravention of the Code of Conduct for Victorian Public Sector Employees and not because he was a union representative.  The employer stated its actions, however, did not constitute ‘adverse action’ as defined by the Act.

The Federal Court was satisfied that the employer had not acted contrary to the Act but rather as a result of the employee’s breach of the Code of Conduct.  The employee’s application for compensation was dismissed by the Court.

Whilst this case does present some boundary on the use of ‘adverse action’ under the Act, its rationale applied specifically to the facts of the case.  Employers should be aware of the capacity for ‘adverse action’ claims under the Act where an employee’s workplace rights might arguably be breached.

Should you wish to know more about ‘adverse action’ please contact either Ian Curlewis, Partner, on (08) 9288 6756 or or Michael Jensen, Senior Associate, on (08) 9288 6944 or

Disclaimer – the information contained in this publication does not constitute legal advice and should not be relied upon as such. You should seek legal advice in relation to any particular matter you may have before relying or acting on this information. The Lavan team are here to assist.