Employees who do not fit within the scheme of unfair dismissal, either because they are in their qualifying period or because they earn over the high income limit of $108,300, are permitted by the Fair Work Act to bring an even more serious claim related to adverse action.

The key features of an adverse action claim are first, that there is a workplace right that the employee has undertaken, requested, queried or had withheld, such as conducting union related activities or raising concerns they might have in relation to Occupational Health & Safety (e.g. failure to issue safety eyewear). The second feature of an adverse action claim is the allegation that you, as an employer, have made a decision to take some steps to deal with the worker in an adverse way.

Adverse treatment could include things such as cutting employees' overtime, changing their shifts from weekend to mid-week, cancelling their annual leave or forcing them to take it, demoting them, or, most obviously, terminating their employment.

Under the Act, it has to be established that there is a causal nexus, that is, that the workplace right was the motivating reason for the business taking that adverse action. From an employer's perspective, the most alarming aspect of the legislation is that there is a reverse onus on the employer to prove that the assertion of the workplace right by the worker was not the reason that the employer took the action in question.
Bendigo TAFE and the Australian Education Union

Employers are well advised to take heed of the potential pitfalls in the legislation. In particular, if you have an an employee who is making comments about OH&S issues, making enquiries about reporting injuries for Workers Compensation purposes or complaining that he/she is not being paid a particular allowance, be particularly careful about disciplining them - even during the first 6-12 months of employment.

If you want to take action against that person for other matters relating to performance or other forms of misconduct or, indeed, the fact that they have established a pattern of complaining, you have to be crystal clear in your documentation and in your counselling that it is those matters that are driving you to take this action. It is imperative that you avoid giving the worker the opportunity to point to you as an employer who has put up with misconduct of a similar nature on the part of other workers without taking action.

The full article is available at Mondaq.