Adverse Action and General Protections
All employees have workplace rights. For example, employees have the right to engage in industrial activities, to be free from undue influence and pressure whilst negotiating individual arrangements, and to be free from unlawful discrimination. These workplace rights are incorporated into the Fair Work Act 2009 and therefore protected by law.
It is against the law to take adverse action against an employee for exercising one of their workplace rights. Adverse action is generally defined as conduct by the employer that the puts the employee at risk of being treated unfairly. For example, adverse action includes dismissing an employee, altering the employee’s position to the employee’s detriment, or discriminating between the employee and other employees in the same business.
If an employer takes adverse action against an employee, the employee is entitled to lodge a general protections application with the Fair Work Commission. The Fair Work Commission will then deal with the dispute, usually by way of a conciliation conference. However, if the matter cannot be resolved at a conciliation conference, a certificate will be issued by the Fair Work Commission to the effect that the parties have made all reasonable attempts to resolve the matter, but the parties are unable to agree to a resolution. The employee can thereafter make an application to the Federal Circuit Court of Australia for an order by a judge that will determine the matter on a final basis.
If you believe that your employer has taken adverse action against you, please speak to one of our employment lawyers at your earliest convenience as applications to the Fair Work Commission must be made within 21 days of the date that the adverse action was taken. We have a wealth of knowledge and experience, and know how to negotiate to ensure that you receive the best outcome possible.