New adverse action decisions provide clarity to employers
Introduction

Two recent adverse action decisions provide clarity to employers about the operation of the new types of claims available under the Fair Work Act 2009 (the Act).

Adverse action claims will usually be made by employees in relation to the alleged adverse actions taken by employers which include termination of employment; or injuries to the employee in his or her employment; or altering the position of the employee to the employee's prejudice; or discriminating between the employee and other employees of the employer.

The Act also creates a new "right" which can not be the subject of adverse action, called workplace rights, which can be broadly described as employment entitlements and the freedom to exercise and enforce those entitlements.
Adverse action claims made by employees and unions are increasing and employers are at risk of possible claims as an alternative to unfair dismissal claims (where the compensation is capped) or discrimination claims.

We recommend that employers take the following steps to ensure that they are adverse action claim ready:

• make sure decisions are transparent, fair and reasonable and not for some other reason related to the employee's workplace rights or industrial activities
• ensure that managers understand the new general protection provisions and this is reflected in training and procedures
• have appropriate processes for managing complaints, including managing corporate memory because adverse action claims that are not in relation to termination of employment can be commenced within six years of the event
• establish a system of flags for special management of high risk issues or staff members, so that grievances can be dealt with internally rather than employees making claims to external tribunals and courts.

Despite the new laws in relation to adverse action, employers should take disciplinary action where appropriate, provided that that action is initiated on a bona fide basis and in accordance with any procedural rules, and not the basis of the employee's affiliation with a union.

This article is available in full at Mondaq.