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Adverse Action Notes

Law Notes > Employment Law Notes

This is an extract of our Adverse Action document, which we sell as part of our Employment Law Notes collection written by the top tier of Monash University students.

The following is a more accessble plain text extract of the PDF sample above, taken from our Employment Law Notes. Due to the challenges of extracting text from PDFs, it will have odd formatting:

Topic 8: Adverse Action?Rule: o 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 o 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 o 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: o This part applies to: s 338(1)
? Action taken by a constitutionally covered entity
? Includes: s 338(2) o a constitutional corporation o the Commonwealth o a Commonwealth authority o a body corporate incorporated in a Territory o 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

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