Introduction
Dealing with workplace issues can be stressful, especially when it feels like you’re being unfairly treated. In Australia, the Fair Work Act protects employees against “adverse action,” which refers to any action an employer takes that negatively impacts your employment. Whether it’s a dismissal, unfair demotion, or a change in your work conditions, the Fair Work Act 2009 ensures you’re not penalized for standing up for your rights, joining a union, or making a complaint. If you believe you’ve been treated unfairly at work, you may have the right to file a claim with the Fair Work Commission (FWC) to address the issue.
This article outlines what constitutes adverse action, when a claim can be made, and the process involved.
What is Adverse Action?
Adverse action is defined in section 342 of the Fair Work Act as any action taken by an employer that negatively affects an employee’s employment. Specifically, it may involve:
- Termination of Employment: This can include dismissal, redundancy, or any situation where an employee’s employment is effectively ended.
- Demotion: Reducing the employee’s position, authority, or responsibilities.
- Alteration of Employment Terms or Conditions: This refers to reducing wages, altering work hours, or changing the location of employment.
- Discrimination or Harassment: Actions that discriminate against an employee based on protected attributes such as age, sex, race, religion, or disability as supported by section 351 of the Fair Work Act.
Importantly, adverse action must be taken for a prohibited reason. For example, an employer cannot take adverse action because an employee exercises their workplace rights (e.g., requesting a leave of absence, participating in a union, or making a complaint about workplace conditions).
When Can You Make a Claim for Adverse Action?
Under the Fair Work Act 2009, an employee can make a claim to the Fair Work Commission (FWC) if they believe that they have been subjected to adverse action in the following circumstances:
- Exercising Workplace Rights
An employee is protected from adverse action if they are acting in exercise of a workplace right. Workplace rights are outlined under section 341 of the Fair Work Act.
If an employer takes adverse action (such as firing, demoting, or altering employment conditions) because an employee exercised any of these rights, the employee has the right to seek recourse from the FWC.
- Discrimination or Harassment
Adverse action can also arise from discrimination based on attributes such as gender, age, race, disability, or religion. If an employee is treated unfairly because of these protected attributes, this is an example of adverse action, and a claim can be made to the FWC.
- Industrial Activity
Employees are protected against adverse action taken due to their participation in industrial activities. This includes involvement in union activities or engaging in industrial action (e.g., strikes). If an employer penalizes an employee for participating in these activities, a claim can be filed.
- Unfair Dismissal
Adverse action can also arise in cases of unfair dismissal or breach of a contract where an employee is dismissed for unlawful reasons, such as retaliation for asserting their rights. Employees in these situations may also lodge claims with the FWC.
Time Limits for Filing a Claim
To bring a claim under the Fair Work Act for adverse action, an employee must lodge the claim with the FWC within a specific period from the date the action was taken. The typical time limit is 21 days from the date of the alleged adverse action.
It is crucial to act promptly, as failure to submit a claim within the statutory time frame could result in the dismissal of the application.
If you think you have been the victim of adverse action, give Adams and Partners a call on 0247216200.
Written by David Hampton
