Are you aware of adverse action?
When the industrial landscape changed last year and the Fair Work Act (FWA) was introduced, so to was adverse action. Adverse action is an avenue available to employees under the FWA which allows them to make a claim against an employer on the basis of being treated adversely due to undertaking, requesting or querying a work place right or having a workplace right withheld. For an employee to make a claim on the basis of adverse action the workplace right must be the motivation for the action. This could be anything from simply changing an employee’s roster outside the bounds of the award, forcing an employee to take annual leave, treating one employee differently from other employees or withholding a promotion where the employee was qualified to perform the job due to impending parental leave.
In the event that an employee makes a claim, the onus of proof falls to you as the employer to prove that process or act was not as a result of a workplace right. In laymen’s terms, you are guilty until you prove yourself innocent, a feature of the new legislation that is proving to be a pitfall for employers. Although still relatively new and we have yet to see too many cases go to trial, we advise employers to be careful when disciplining, terminating or approaching employees who have made enquiries about their remuneration, reported injuries to work cover, questioned employment conditions or any other form of exercising a workplace right. Following correct process can only be your friend where adverse action is concerned.
DISCLAIMER: This article does not constitute legal advice. If you require assistance with creating policies for your workplace, please email admin@wattsnext.com.au
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