Adverse Action –the hidden sting in the Fair Work Act

Employees who may be barred from bringing an unfair dismissal claim, either because they are in their qualifying period or because they earn over the high income limit threshold, are permitted by the Fair Work Act 2009 (Act) to bring an even more serious claim related to adverse action.  That is, the employer has dismissed the employee, or injured the employee in his or her employment or altered the position of the employee to the employee's prejudice.

A recent case in the Federal Court is evidence of the broad application of the adverse action provisions of the Act.  In that case the Act was used by the union to attack the employer’s investigation of a workplace accident and the dismissal of the employee.  The case centered on the investigation by the employer of the workplace accident and the rights of the employee during the investigation meetings.

The investigation involved the employer conducting a number of meetings with the employee, with both parties assuming that the meetings were conducted in accordance with the disciplinary procedures set out in the applicable Enterprise Agreement (Agreement).  The Agreement clearly identified the parties who could be in attendance at any disciplinary meeting.  Contrary to the provisions of the Agreement, the employer’s Human Resources Manager attended all the investigatory meetings.

During the course of the meetings, the union consistently requested that the HR Manager leave the meeting as she was not one of the parties identified under the Agreement.  This request was refused by the employer on each occasion. 

Eventually the union indicated that they would not participate in the meetings until such time as the employer complied with the provisions of the Agreement.  In response to this ultimatum, the employer recommended that the employee seek alternative representation, as the meeting would proceed with or without the employee’s attendance.  The employee and the union did not attend the meeting and the employee then submitted her version of events in writing.  Following the investigation process, the employer dismissed the employee on the grounds of serious misconduct.

The union brought a claim for adverse action against the employer on the grounds that the employee was terminated for asserting her workplace rights.  Namely the right to have the meeting conducted in accordance with the provisions of the Agreement and the right to have the HR manager leave the meeting.  Further, the suggestion by the employer that the employee seek alternative representation was an abuse of her right to have her chosen representative recognised.

The Court dismissed the application on the basis that the meetings in question were not disciplinary meetings but were held for the purposes of investigating a workplace accident and therefore were not subject to the procedure as set out in the Agreement.  

Notwithstanding this finding, the Court concluded that the suggestion to the employee to seek alternative representation did not amount to a breach of a workplace right because it sought to encourage the employee to participate in the meeting, which was for the benefit of the employee, and to provide her with the opportunity to state her version of events.  It found that the employee’s position was not prejudiced, as the decision to terminate her employment was made on all the information available to the employer, including the written statement by the employee.

Whilst in this case the application was dismissed, it serves as a timely reminder that employers need to be fully aware of their procedures and policies and know exactly what the employee is entitled to under those policies.

To have your policies reviewed, or if you wish to have further information about this case or any other employment issues, please contact Ian Curlewis, Partner, on 08 9288 6756 / or Michael Jensen, Senior Associate, on 08 9288 6944 /

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.