General Protections for Employees under the Fair Work Act

The Fair Work Act contains general protection provisions and provides protection for an employee from dismissal or any other “adverse action” they may have suffered if they can successfully argue that a reason for the dismissal or other adverse action was the exercise of a “workplace right” or based on a “prohibited ground”.

This area of the law is becoming a hive of activity and its use is becoming more and more prevalent when compared to your standard unfair dismissal claims by employees.

The general protection provisions of the Fair Work Act define “adverse action” to include where an employer dismisses an employee, “injures an employee”, “alters the position of an employee” or discriminates between the employee and other employees.  Definitions of what constitutes injuring an employee include when an employee suffers financial injury or injury regarding the deprivation of rights which the employee has under a contract of service.  It also includes where an employee is treated substantially differently from the manner in which he or she is ordinarily treated and where that treatment can be seen to be injurious or prejudicial.

Despite various efforts by employers to keep on top of their obligation in relation to the controversial “adverse actions” provisions in the Fair Work Act, it is worth heeding a warning that even commonplace employer actions can result in an adverse action claim if HR departments do not follow the letter of the law and adapt policies to avoid falling foul of the provisions.  Such actions may include informing an employee their role may be made redundant, instituting a disciplinary enquiry, issuing letters to employees that effectively ask them to address various allegations made against them (“show cause” letters) and investigating various complaints against other employees.  The onus of proof lies with the employer, not the employee, and the employer must prove that the adverse action was not as a result of the employee attempting to exercise their workplace rights.  Workplace rights include a large range of matters including union rights, the right to request flexible workplace arrangements, the right to make complaints about their employment and the right to request information about disciplinary action.

It is very important for HR managers to justify and document their reasons for actions against employees particularly in performance management situations.  There is a real need for employers to protect themselves against adverse action claims and educate themselves in this complicated area of workplace laws.

Ben Farmer

5 December 2016