Under the Fair Work Act 2009 employees are able to make an application to the Fair Work Commission (FWC) for adverse actions (such as termination or negative treatment) made against them in respect of a ‘workplace right’.
Adverse action means conduct by the employer that puts the employee at risk of losing their job, being treated unfairly or, in a situation of a prospective employee, not hiring them.
A ‘workplace right’ is where an employee has an entitlement, under a legislative instrument, to a right, such as a workplace provision under the Fair Work Act 2009, Anti Discrimination Act etc….
There are three (3) broad categories of Prohibited Reasons and they are:
- The employee has, or has exercised, a workplace right.
- The employee is a union member or engages in an industrial activity.
- Any discriminatory reason – such as age, race, sex, disability, etc.
Recent case law has indicated that if there is a lack of evidence showing that the employer terminated the employee’s contract for a ‘prohibited reason’ then the Court will reverse the onus of proof and have the employer show evidence to the contrary.
The employer has the onus of proving that the alleged adverse action was not for a ‘prohibited reason’. For example, if the employee’s claim was that they were terminated because they exercised a workplace right, it would then be up to the employer to prove the action was reasonable or not an adverse action.
In the High Court case of The Board of Bendigo Regional Institute of Technical and Future Education v Barclays the Court proposed (and did so) to reverse the onus of proof so that the ‘decision-maker’ (that is the one who acted adversely towards the employee) would need to demonstrate why his/her actions, that gave rise to the complaint, were not ‘prohibited reasons’. If evidence by the decision-maker substantiates that they were not at fault then the Court will likely rule in favour of the employer, rather than the employee. However, that is not to say that the Court won’t test the reliability of any evidence given by the decision-maker.
In the 2013 judgements of Wolfe v ANZ and Begley v Austin Health in the Federal Magistrate’s Court ruled that although the reasons why both employees were dismissed maybe ‘very unfair’, the question to be answered was, when the decision-maker made their decision was it based on a ‘prohibited reason’ or not? If so, then the employer has adversely affected the employee, therefore the employee is provided general protection against any of the prohibited reasons giving rise to the action.
If you are involved in a general protections dispute we suggest you action one of our employment lawyers immediately.
Foulsham and Geddes notes that this article is written for the purpose of providing generalised information and not to provide specialised legal advice.