While most employers have heard of employee unfair dismissal rights, many employers are not aware of the more risky General Protections which are available to senior executives, professionals or Award covered employees.
The General Protections can be quite complicated. The following is Part 1 of a summary which covers the essentials of Adverse Action.
In this update we examine Adverse Action and Workplace Rights.
In Parts 2 and 3 we will examine Workplace Rights in more detail and provide employer guidance.
Adverse Action
The Fair Work Act states that one person (usually the employer) must not take ‘adverse action’ (a negative action) against another person (usually an employee but could also be an independent contractor) because the employee has a ‘workplace right’ or exercises that right. We’ll come back to what those ‘workplace rights’ are below.
Such adverse (negative) action could include the following:
- Terminating the employee from their employment
- Changing the employee’s work conditions or situation such as taking them off shift work resulting in an income reduction
- Denying an employee their access to leave
- Changing the employee’s job to disadvantage them (demotion)
- Treating the employee differently – due to their sex or age, etc
- Not hiring someone – due to discriminatory reasons
- Treating the potential employee differently to disadvantage them through the recruitment process.
So what is a ‘Workplace Right’
An employee has a ‘workplace right’ where they are entitled to the benefit of an Award, Enterprise Agreement or any Act such as the Fair Work Act 2009 or Sex Discrimination Act 1984.
Examples of ‘benefits’ include:
- An Award or Agreement provides wages, allowances, training entitlements or a shift penalty as a shift worker etc.
- The Fair Work Act provides the benefits of annual leave, personal carers leave etc.
A Workplace Right - Making a Complaint or Inquiry
An employee is exercising a workplace right where they are making a complaint or inquiry:
- to their employer in relation to their employment; or
- to another person or body to seek compliance with a workplace law or Award or Agreement.
Adverse Action could occur where the employer takes negative action because the employee made a such a complaint or inquiry.
A Workplace Right – Utilising a Benefit Under an Award or Agreement or the NES.
An employee is absent from work and takes personal leave. The employer refuses to grant the employee accrued paid sick leave and provides unpaid leave. The employee has exercised a legitimate workplace right.
In Part 2 we further examine more employee workplace rights such as being involved in union activities or participating in any legal processes under the Fair Work Act.
These types of General Protections claims usually hit employers out of left field as they do not expect it. Given the employer must prove themselves innocent they can be very difficult and very costly. If you are seeking to alter an employee’s position or conditions negatively it is recommended to seek advice on the best way to do this.
Give me a call anytime to talk it through.
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Kind Regards
Michael Schmidt
M 0438 129 728
www.hunteremployeerelations.com.au
Industrial Relations - Employment Law - Workplace Performance
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