What is Adverse Action?

Adverse action is unlawful and discriminatory action taken by an employer against an employee because the employee exercised a workplace right. The discriminatory action includes doing, threatening or organising to dismiss an employee, injure an employee in their employment. altering an employee's position to their detriment or discriminating against a prospective employee through the offer of employment.


In this article, we will look at what adverse action is in detail.


Author: Farrah Motley, Solicitor of the Supreme Court of Queensland


What is Adverse Action?
What is Adverse Action?

How Does the Fair Work Act Define Adverse Action?

The Fair Work Act 2009 (Cth) protects employees against adverse action, by making it unlawful. Section 340 states:


340 Protection

(1) A person must not take adverse action against another person:

(a) because the other person:

(i) has a workplace right; or

(ii) has, or has not, exercised a workplace right; or

(iii) proposes or proposes not to, or has at any time proposed or proposed not to, exercise a workplace right; or

(b) to prevent the exercise of a workplace right by the other person.

Note: This subsection is a civil remedy provision (see Part 4‑1).

(2) A person must not take adverse action against another person (the second person) because a third person has exercised, or proposes or has at any time proposed to exercise, a workplace right for the second person’s benefit, or for the benefit of a class of persons to which the second person belongs.

Note: This subsection is a civil remedy provision (see Part 4‑1).


Now let's breakdown the concepts of "workplace right" and "adverse action".


What is a Workplace Right?

Employees are only protected from adverse action based on certain protected traits (or "workplace rights") covered by the Fair Work Act 2009 (Cth). A workplace right includes where an employee:

  • has a benefit, role or responsibility under a workplace law or industrial instrument;

  • can take part in a process or proceeding under a workplace law or industrial instrument, including for example:

  • a court proceeding;

  • a conference before the Fair Work Commission;

  • terminating an individual flexibility arrangement; or

  • has the capacity under a workplace law to make a complaint or inquiry:

  • to a person or body to seek compliance with that workplace law or workplace instrument

  • if the person is an employee, in relation to their employment.

Now let's breakdown the concept of a "workplace right" even further.


Benefit, role or responsibility under a workplace law or industrial instrument


A benefit, role or responsibility under a workplace law or industrial instrument may include:

  1. the role of a bargaining representative under a workplace law (refer to Jones v Queensland Tertiary Admissions Centre Ltd (No 2) (2010) 186 FCR 22)

  2. an obligation to ensure workplace safety as a Health and Safety Officer (refer to Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Visy Packaging Pty Ltd (No 2) (2011) 213 IR 48)


Take part in a process or proceeding under a workplace law or industrial instrument


Section 341(2) of the Fair Work Act 2009 (Cth) sets out the circumstances in which an employee will be taking part in a process or proceeding:


(a) a conference conducted or hearing held by the FWC;

(b) court proceedings under a workplace law or workplace instrument;

(c) protected industrial action;

(d) a protected action ballot;

(e) making, varying or terminating an enterprise agreement;

(f) appointing, or terminating the appointment of, a bargaining representative;

(g) making or terminating an individual flexibility arrangement under a modern award or enterprise agreement;

(h) agreeing to cash out paid annual leave or paid personal/carer's leave;

(i) making a request under Division 4 of Part 2-2 (which deals with requests for flexible working arrangements);

(j) dispute settlement for which provision is made by, or under, a workplace law or workplace instrument;

(k) any other process or proceedings under a workplace law or workplace instrument.


Has the capacity under a workplace law to make a complaint or inquiry


Taking part in a process or proceeding under a workplace law or industrial instrument can include:

  1. where an employee makes an inquiry or complaint to his or her employer (refer to Hodkinson v The Commonwealth [2011] FMCA 171)

  2. seeking legal advice in relation to a person’s employment (refer to Murrihy v Betezy.com.au Pty Ltd [2013] FCA 908)

What is Action that is Adverse?

An employer will have treated a person adversely if the person exercises (or does not exercise) a workplace right and, consequently, the employer (for example):

  • dismisses the employee;

  • demotes the employee;

  • alters the position of the employee to the employee’s prejudice; and/or

  • discriminates between the employee and other employees.

Adverse action taken by a person includes doing, threatening, or organising any of the following:

  • an employer dismissing an employee, injuring them in their employment, altering their position to their detriment, or discriminating between them and other employees

  • an employer refusing to employ a prospective employee or discriminating against them in the terms and conditions the employer offers

  • a principal terminating a contract with an independent contractor, injuring them or altering their position to their detriment, refusing to use their services or to supply goods and services to them, or discriminating against them in the terms and conditions the principal offers to engage them on

  • an employee or independent contractor taking industrial action against their employer or principal

  • an industrial association, or an officer or member of an industrial association, organising or taking industrial action against a person, or taking action that is detrimental to an employee or independent contractor

  • an industrial association imposing a penalty of any kind on a member.

Limitations to lodging Adverse Action

An application for general protection claim must be lodged within 21 days from the date of dismissal.


Want to read more? Check out this article which explains how to terminate the employment of an employee (in a peaceful way!).


Author: Farrah Motley | Legal Principal

PROSPER LAW - A Law Firm for Businesses

M: 0422 721 121

E: farrah@prosperlaw.com.au

W: www.prosperlaw.com.au