‘Adverse action’ – the expanding trap

Under the Fair Work Act (Act), employees are able to make an ‘adverse action’ claim if an employer has breached or has threatened to breach a ‘workplace right’.

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

The Full Bench of the Federal Court gave recent attention to an adverse action claim involving a public servant and his conduct in the workplace.

The public servant, who was also a union delegate, sent an email to members of the union employed by the employer alleging misconduct by unnamed co-employees in respect of their alleged creation of false documentation to satisfy an upcoming audit of the employer.  The employer sought more details of the allegations, but received no cooperation from the employee.  The employer then suspended the employee from his duties and internet access and directed the employee not attend the employer’s premises until such time as the issue was resolved. 

The employee subsequently claimed 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 and contrary to the Act.

The employer on the other hand argued its action against the employee 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 said its actions did not constitute adverse action.

The Court said that in order to determine whether the action taken was adverse, the ‘real reason’ for the action had to be identified.  It then found that the employee, when sending the email alleging misconduct in the workplace, was performing his role as a union representative.  The Court said that sending such an email was ‘at the heart of his engagement in industrial activity’ as was the employee’s refusal to breach the confidence of those union members who had spoken to him.

The Court thus determined that the industrial activity of the employee as union representative was the real reason for the actions of the employer.  The fact that the employer had chosen to characterise the employee’s conduct as being one and the same as his role as an officer of the union could not negate the real reason for the action.  The Court thus found that the employer’s conduct constituted adverse action.

The case illustrates the care that employers must take to ensure when implementing workplace policies and performance management processes, that the sole reason for doing so has no connection with any workplace right of an employee nor otherwise constitutes discriminatory conduct on the part of the employer.

Should you wish to know more about ‘adverse action’ please contact either Ian Curlewis, Partner on (08) 9288 6756 / ian.curlewis@lavanlegal.com.au or Michael Jensen, Senior Associate on (08) 9288 6944 / michael.jensen@lavanlegal.com.au.

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.