| |
|
|
|
Adverse Action - Employers Watch Out! |
The new Fair Work Act 2009 has a sleeping provision that could prove a nightmare for employers. The nightmare starts with a journey through the new Adverse Action provisions. Adverse Action claims go beyond the old Workplace Relations Act unlawful termination regime where employees could sue if terminated for discriminatory reasons or for compliant to a "competent authority", such as a workplace inspector, and beyond the discrimination anti-victimisation rules. |
Expansion of victimisation rights |
The Adverse Action regime is however much broader because it covers action from exercise of a Workplace Right or Industrial Activity. For example:
- There is no Salary Cap - all employees can make a claim
- No qualifying period of employment, unlike unfair dismissal
- Employees can seek interim injunctions
- Covers Employees, labour hire companies and contractors
- Applies before, during and after employment - Prospective employees can seek relief
- Covers informal complaints or enquires to employers and unions
- Covers informal complaints or enquires to employers and unions
- Covers performance management, demotion, discussions about possible termination
- Courts can order any appropriate remedy, including not just compensation but injunctions and reinstatement
- Any change to employee duties, reporting line, or employee injury (including psychological injury) could result in a claim
- Reverses the onus of proof
- Includes carers' responsibilities - you will need to be more willing to accommodate flexible work requests.
|
| Examples |
- Employee asks HR about pay calculations, then hours are reduced, employee asks FWO to investigate or FWA to arrange a compulsory conference or FMC for reinstatement, compensation and penalty - to reinstate old hours, employer must prove that decision to reduce hours unconnected with employee HR enquiry,
- Pregnant employee about to go on parental leave is denied promotion because goes on parental leave soon, employee asks for injunction to restrain employer from promoting someone else
|
What you should do |
- Update your policies and procedures to ensure exercise of workplace rights does not result in Adverse Action claims.
- Retrain HR staff to be aware of the risks, and how to deal with enquiries from Fair Work Inspectors based around Adverse Acton
- Update recruitment policies so they are non-discriminatory per both EEO and FWA
- Only make identical offers of employment applicants to avoid claim of discrimination around employment offers
- Don't offer employment on basis that employee agree to an individual flexibility agreement
- Be ready for an influx of FWO investigations and FWA compulsory conciliations because employees can access FWA quickly and cheaply
- Note possible fines of up to $6,600 for individuals or $33,000 for a company.
- Have consistent and fair processes to deal with employee questions
- Improve record keeping of employee requests and responses
- Before terminating check if employee has made a complaint or enquiry
|
These are just a few suggestions and are not legal advice as each employer has different systems and needs. There is no need to wake up in a cold sweat when an employee contacts FWA or makes a claim because you can take preventative action to reduce your risk. The courts have yet to rule on many aspects of the new Adverse Action regime, but should import the concept of a fair go all round into their consideration of the issues raised by the new laws. |
|
