General Protections / Adverse Action

Managing the risk of an adverse action claim, starts with being proactive and understanding your obligations and duties to employees

An employer or principal contractor is prohibited from taking an “adverse action” against an employee or sole trading contractor, because that other person has a “workplace right”, exercises a workplace right, proposed to exercise a workplace right or due to some discriminatory grounds. 

What is Adverse Action?

Adverse action includes doing, threatening, or organising any of the following: 

  • Dismissing an employee, injuring them in their employment, altering their position to their detriment, or discriminating between them and other employees,
  • Refusing to employ a prospective employee or discriminating against them in the terms and conditions they are offered, and
  • Terminating a contract with an independent contractor, injuring them or altering the 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 they are offered to be engaged upon.

What is a Workplace Right?

A workplace right exists where a person: 

  • Is entitled to a benefit or has a role or responsibility under a workplace law, workplace instrument or an order made by an industrial body,
  • Is able to initiate or participate in a process or proceedings under a workplace law or workplace instrument, 
  • Has the capacity under a workplace law to make a complaint or inquiry to a person to seek compliance with that workplace law or workplace instrument or if the person is an employee, in relation to their employment, and has a trait that may be afforded protection by a discrimination law.

General Protections Claims

General Protections Applications are dealt with initially by the Fair Work Commission by way of application from an affected employee or contractor. 

If the adverse action complained of has resulted in termination of employment an application must be lodged within 21 days of the termination taking effect. Leave however may be sought in special circumstances for the filing of a late application. 

If an employer receives such an application, they must file a response with the commission within 14 days. The matter is subsequently referred to conciliation and if not resolved the Fair Work Commission issues a certificate of conciliation which allows the Applicant to then commence proceedings in either the Federal Circuit Court or the Federal Court of Australia. 

There is a reverse onus of proof in relation to General Protections Applications that requires the employer or principal contractor to prove that any action taken by them was not as a result of the exercise of a workplace right or due to discrimination by them. 

General Protections/Adverse Action Recommendations for Employers

  • When making decisions with respect to employees, contractors, and employment/contractual arrangements consider whether those persons have previously sought to exercise any right or entitlement which could be considered to be a workplace right under legislation or an industrial instrument.
  • If such circumstances exist care should be taken when making any decisions to vary employment circumstances or terminate any employment or contractual arrangement.
  • Employees or contractors should not be singled out for any form of adverse treatment because of their reliance upon a workplace right or because they have a trait which could provide them with protection from any form of discrimination law. 
  • Any decision by an employer or a principal contractor should be fully documented with adequate reasons provided.

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We help Employers to protect their interests and Employees to enforce their rights.

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In an area of law that is constantly changing we will ensure that we provide you with clear, concise, timely legal advice to enable you to make informed commercial decisions.

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