#13074 - Adverse Action - Employment Law

Topic 8: Adverse Action

• Rule:

  • A person must not take adverse action against another person because the other person has a workplace right, or has or has not exercised a workplace right, or proposes or proposes not to exercise a workplace right, or to prevent the exercise of a workplace right by the other person s 340(1)

    • This is a civil remedy provision

  • A person must not take adverse action against another person (the second person) because a third person has exercised, or proposes 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 s 340(2)

    • This is a civil remedy provision

  • Accessorial liability: If a first person advises, encourages or incites or takes any action with intent to coerce a second person to take action, the first person is take to have contravened the provision s 362

• Applicability of the provision:

  • This part applies to: s 338(1)

    • Action taken by a constitutionally covered entity

      • Includes: s 338(2)

        • a constitutional corporation

        • the Commonwealth

        • a Commonwealth authority

        • a body corporate incorporated in a Territory

        • an organisation

    • Action that affects, or is capable of affecting, the functions, relationships or business of a CC entity

    • Action that consists of advising, encouraging or inciting, or action with intent to coerce a CC to take action

    • Action taken in a Territory or a Commonwealth place

    • Action take by a trade and commerce employer; or a Territory employer

      • Trade and commerce employer is a national system employer s 338(3)

• Has there been adverse action? s 342:

  1. Adverse action is taken by an employer against an employee if the employer

     • Dismisses the employee

     • Injures the employee in his or her employment

     • Alters the position of the employee to the employee’s prejudice; or

       • This is a broad additional category which covers not only legal injury but any adverse affection of, or deterioration in, the advantages enjoyed by the person before the conduct in question Qantas v ALAEA 2012

       • Must be ‘real and substantial’ rather than ‘merely possible or hypothetical’ Qantas v ALAEA 2012

       • If the person is in the cohort that is affected by a change, this is enough Qantas v ALAEA

     • Discriminates between the employee and other employees of the employer

     • Example of adverse action taken against employees:

       • Complaining about their treatment, or that of their fellow works Qantas v ALAEA 2012

       • Refusing to accept sub-award conditions Chileshe v E & M Business Trusts 2013

       • Taking or being entitled to take leave FWO v WKO 2012

       • Seeking to return to work after parental leave FWO v Tiger Telco 2012

       • Refusing to work unreasonable overtime Brown v Premier Pet 2013

       • Invoking the consultation and dispute resolution provisions in an enterprise agreement Stanley v Court 2014

       • Pursuing a workers compensation claim Stephens v Australian Postal 2011

       • Exercising responsibilities as a safety representative AMWU v Visy Packaging 2013

  2. Adverse action is taken by a prospective employer against a prospective employee if the employer

     • Refuses to employee them or discriminates against the employee in the terms or conditions on which the prospective employer offers to employ the prospective employee

       • This action can only be pursued if there was in fact a vacancy to which they might have been appointed Stephens v Australia 2013

  3. Adverse action is taken by a principal who has entered into a contract for services with an independent contractor against the independent contractor if the principal

     • Terminates the contract

     • Injures the independent contractor in relation to the terms and conditions of the contract; or

     • Alters the position of the independent contractor to the independent contractor’s prejudice; or

     • Refuses to make use of or agree to make use of services offered by the independent contract; or

     • Refuses to supply, or agree to supply, good or services to the independent contractor.

  4. Adverse action is taken by a principal proposing to enter into a contract for services with an independent contractor against the independent contractor, or a person employed or engaged by the independent contractor if the principal:

     • Refuses to engage the independent contractor; or

     • Discriminates against the independent contractor in the terms or conditions on which the principal offers to engage the independent contractor; or

     • Refuses to make use of, or agree to make use of, services offered by the independent contractor; or

     • Refuses to supply, or agree to supply, goods or services to the independent contractor

  5. Adverse action is taken by an employee against his or her employer if the employee

     • Ceases to work in the service of the employer; or

     • Takes industrial action against the employer

  6. Adverse action is taken by an employee/independent contractor against his or her employer if the employee

     • Ceases to work in the service of the employer; or

     • Takes industrial action against the employer

  7. Adverse action is taken by an industrial association, or an officer or member of an industrial association, against a person if the IA, or the officer of the IA

     • Organizes or takes industrial action against the person; or

     • Takes action that has the effect of prejudicing the person in the person’s employment or prospective employment; or

     • If the person is an independent contract – takes action that has the effect of prejudicing the independent contractor in relation to a contract for services; or

     • If the person is a member of the association – imposes a penalty, forfeiture or disability of any kind on the member

  • Adverse action does not include:

    • Action that is authorized under any law s 342(3)

    • Standing down an employee who is engaged in protected industrial action; and employed under a K that provides for the employer to stand them down s 342(4)

• Is there a causal link between the employer’s adverse action and:

  • A workplace right of the employee OR

  • Industrial activities by the employee OR

  • Because the employee has a characteristic listed in Div 5?

  • A person takes action for a particular reason if the reasons for the action include that reason s 360

    • There cannot be a ‘subconscious’ consideration of a reason State of Victoria v Grant

    • Left open in Barclay whether the reason must be substantial and operative

    • The focus of the inquiry is why the employer took the adverse action – i.e. the employer’s subjective reasons Barclay v Bendigo Regional Institute of TAFE

      • However, obviously they could distort the truth, so the employer must satisfy the Court of the reasons, and the reliability and weight of the employer’s evidence must be balanced against employee’s evidence and the overall circumstances

      • However, mere knowledge of proscribed attribute is not a sufficient condition for finding adverse action was taken State of Victoria v Grant

  • Burden of proof: If it is alleged that a person took action for a particular reason or with a particular intent, it is presumed that the action was taken for that reason unless they prove otherwise s 361(1)

    • The employee will have the burden of proof for interlocutory injunctions s 361(2) whilst the employer will have the burden of proof for all other cases s 361(1)

    • If the decision-maker’s testimony is accepted as reliable and honest it will discharge the onus imposed on the employer State of Victoria v Grant

      • The only factors that can render decision-maker’s evidence unreliable are internal contradictions in the evidence or other objective evidence

• Workplace right? s 342

1. A person has a workplace right if the person:

   1. is entitled to the benefit of, or has a role or responsibility under, a workplace law, workplace instrument or order made by an industrial body; or

      • Workplace law is broadly defined in s 12 to include any Federal, State or Territory law regulating employment relationships.

   2. is able to initiate, or participate in, a process or proceedings under a workplace law or workplace instrument; or

   3. is able to make a complaint or inquiry:

      • to a person or body having the capacity under a workplace law to seek compliance with that law or a workplace instrument; or

      • if the person is an employee--in relation to his or her employment.

      • **Note: this complaint does not need to be made to the employer , could be someone else e.g. lawyer

2. Each of the following is a process or proceedings under a workplace law or workplace instrument:

   • a conference conducted or hearing held by FWA;

   • court proceedings under a workplace law or workplace instrument;

   • protected industrial action;

   • a protected action ballot;

   • making, varying or terminating an enterprise agreement;

   • appointing, or terminating the appointment of, a bargaining representative;

   • making or terminating an individual flexibility arrangement under a modern award or enterprise agreement;

   • agreeing to cash out paid annual leave or paid personal/carer's leave;

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

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

   • any other process or proceedings under a workplace law or workplace instrument.

• Prospective employees taken to have workplace rights: A prospective employee is taken to have the workplace rights he or she would have if he or she were employed in the prospective employment by the prospective employer s 341(3)

• Industrial action? s 346

  • A person must not take adverse action against another person because the other person (civil remedy provision) s 346:

    • Is or is not, or was or was not, an officer...