Posts: Adverse Action

The probation period is commonly used by employers to assess the suitability of an employee for ongoing employment. One of the reasons that the probation period is of benefit to employers is because, when aligned with the minimum employment period set out in the Fair Work Act 2009 (Cth), it allows an employer to end the employment relationship before an employee becomes entitled to protection from unfair dismissal.

In the wake of challenging economic circumstances and increasing episodes of poor employee behaviour, employers may be required to make difficult, but necessary, decisions in relation to its workforce.

An employer has successfully defended an adverse action claim brought by a former employee as the court was satisfied that the employee was not dismissed for a prohibited reason.

For most employers, casual employment is favoured because of the flexibility it provides – employees are employed as required and have no guarantee of ongoing employment. This flexibility however does not mean that casual employees are not protected from adverse action.

When implementing redundancies, it is critical that the process for selecting employees for redundancy is a transparent and objective one. A skills matrix can assist employers in this regard by creating clear and objective criteria against which employees are to be assessed.

Last year, the Federal Circuit and Family Court of Australia found a HR Manager to be accessorily liable for his involvement in an employer’s unlawful adverse action against an employee after she proposed to exercise a workplace right, being her ability to initiate proceedings under a workplace law.

Earlier this year the Federal Circuit and Family Court of Australia in Ruttley v Willis Brothers Installation (Qld) Pty Ltd [2022] FedCFamC2G 430 found that an employer breached the Fair Work Act 2009 (Cth) by taking adverse action against an employee who had been diagnosed with silicosis.

As part of any redundancy process requiring a selection of employees, it is critical that employers consider only matters that are objectively related to an employee in their role and not any of the prohibited reasons under the Fair Work Act 2009 (Cth).

The Fair Work Act 2009 (Cth) prohibits employers from dismissing an employee from their employment because they have exercised a workplace right or because of a discriminatory reason, such as physical or mental disability.

The Fair Work Act 2009 (Cth) contains provisions which make it possible for individuals to be found accessorily liable for their involvement in a contravention of a workplace law. In particular, section 550 of the FW Act provides that a person “involved in” a contravention will be taken to have contravened that provision themselves.

A recent decision of the Federal Circuit and Family Court of Australia has reaffirmed the standard of proof that is required to disprove allegations of unlawful adverse action under the Fair Work Act 2009 (Cth).

Under the general protections provisions of the Fair Work Act 2009 (Cth) (FW Act), employers are prohibited from taking adverse action against an employee (such as dismissing them from employment) because they have a workplace right or because they have exercised or chosen not to exercise that right.

The Federal Circuit Court of Australia (the Court) recently ruled on an application brought by an employee alleging that three respondents had engaged in breaches of the Fair Work Act 2009 (Cth) (FW Act), including sham contracting and dismissing the employee because she was pregnant.

The general protections provisions under the Fair Work Act 2009 (Cth) (FW Act) provide protections against adverse action which is taken for a prohibited reason. Prohibited reasons for taking adverse action include situations where a person has a workplace right and exercises (or proposes to exercise) that right. Workplace rights include the right to utilise leave entitlements under the FW Act.

Discrimination in the workplace is unlawful under a number of Australian laws, including state and federal anti-discrimination legislation (such as the Age Discrimination Act 2004 (Cth)) as well as the Fair Work Act 2009 (Cth) (FW Act).

Under the general protections provisions in the Fair Work Act 2009 (Cth) (FW Act), it is unlawful for a person to take adverse action against another person for a proscribed reason. One of the features of the general protections provisions under the FW Act is the presumption that adverse action was taken for a proscribed reason unless it is proven that the adverse action was not taken for that reason.

2020 continues to deliver unprecedented challenges to employers as they manage the economic and workplace culture impact of COVID-19. Difficult, but necessary, decisions taken in relation to workforce numbers together with increased poor employee behaviour has seen a dramatic rise in the number of unfair dismissal and adverse action claims.

It is sometimes forgotten that sporting clubs and organisations are employers who are also subject to workplace laws and regulations in relation to their employees.

The Chief Operating Officer of Macarthur and South West United FC has launched legal proceedings against the Club, the Club Chair and another director alleging breaches of the general protections provisions under the Fair Work Act 2009 (Cth).

The Federal Court of Australia has ordered the Australian Workers Union (AWU) to pay $18,000 in penalties following its pursuit of disciplinary action against its own members.

When considering claims of adverse action under the Fair Work Act 2009 (Cth) (the FW Act) a key focus of inquiry is the actual reasons of the decision-maker for engaging in the action.

In a matter recently before the Federal Circuit Court of Australia an employer successfully claimed that an employee acted unreasonably in the course of proceedings and the employer was awarded costs of $35,000.

An employer was ordered to pay $10,000 in compensation to a former supervisor who had been dismissed five months into her probation period.

The general protections provisions under the Fair Work Act 2009 (Cth) (FW Act) make it unlawful for an employer to take adverse action against a person for a prohibited reason.

As the functionality of HRIS increases and technology generally gets smarter, will an employer’s reliance on the recommendations or decisions of a HRIS put the employer at risk?

ACT Court of Appeal has dismissed an appeal by Coles Supermarkets and confirmed an earlier decision in which a Coles employee was awarded more than $1 million in damages.

Fair Work Ombudsman’s (FWO’s) successful prosecution of a hotel operator and its owner who took adverse action against two employees because of their Chinese race and Malaysian extraction.

Sports and pop culture website named ‘The Ringer’ published a report about the NBA’s Philadelphia 76ers that sparked controversy worldwide.

Disciplinary process involves discussions about dismissal, employers should not unreasonably refuse a request from the employee to have a support person present.

Unfair dismissal application lodged by an employee who was summarily dismissed in a Facebook Messenger chat.

Intimidating and threatening behaviour by a supervisor towards a subordinate employee via text message and on social media.

Issues arise when casual employees are engaged on a long-term basis, have regular and systematic hours and a reasonable expectation of ongoing employment.

When responding to an unfair dismissal claim or an adverse action claim involving dismissal, there are a range of jurisdictional objections available to employers depending on the circumstances.

In a recent decision of the Federal Circuit Court of Australia, Rosa v Daily Planet Australia Pty Ltd & Anor [2016] FCCA 312, employers are once again reminded that employment of an employee can only be terminated on a lawful basis.

In McLachlan v Illawarra Coal Holdings Pty Ltd T/A South 32 [2017] FWC 5167, an employer sought to argue that they validly dismissed an employee for his organisation of, and participation in, unprotected industrial action.

In its first ever underpayment prosecution relying on the race discrimination provisions of the Fair Work Act 2009 (Cth) (FW Act), the Fair Work Ombudsman has successfully established that two employees of Chinese descent and Malaysian extraction were underpaid because of their race and/or national extraction.

The world has been following the NFL with keen interest these past few weeks after President Trump called on NFL owners to fire players who refused to stand for the US national anthem and flag before a game – raising interesting questions for us sports-loving employment lawyers.

The general protections provisions of the Fair Work Act 2009 (Cth) (FW Act) aim to protect employees from adverse action (including dismissal) because of a proscribed reason. Proscribed reasons include the existence of a workplace right and the exercise (or failure to exercise) a workplace right.

As reported this month in HRM Magazine, Futurist Chris Riddell predicts that artificial intelligence will play a key role in business leadership in the next five years. Riddell says, “Artificial Intelligence will start to make decisions and will ‘co-pilot’ the running of business.” But, as the functionality of HRIS increases and technology generally gets smarter, will an employer’s reliance on the recommendations or decisions of a HRIS put the employer at risk?