Australian Workplace Discrimination Representatives

Adverse Action

What Is Adverse Action?

Adverse action includes not only dismissing an employee but also covers a broader range of conduct that negatively affects an employee’s position at work. This can involve disadvantaging or harming an employee in their role, discriminating against them, or altering their job in a way that places them in a worse position than before. These actions may result in the loss of specific rights or benefits tied to their employment and typically stem from intentional decisions made by the employer. Examples of these might include:

  • Being fired or demoted
  • Being bullied or sexually harassed
  • Having your hours or pay reduced
  • Being excluded or ignored at work
  • Having complaints dismissed or ignored
  • Not being hired because you raised a concern
  • Being denied your entitlements like leave or breaks

If this sounds familiar — you’re not alone. And we can help you.

Are You Protected?

The General Protections provisions of the Fair Work Act 2009 protect a wide range of individuals—employees, prospective employees, employers, contractors, and members of industrial associations. These protections make it unlawful for certain persons (e.g., employers) to take adverse action against others (e.g., employees) because they have or exercise a workplace right, or engage in industrial activity.

A person has a workplace right if they:

  • Can receive a benefit because of a workplace rule or agreement.
  • Has a role or duty outlined by such a rule or agreement.
  • Can start or take part in a workplace-related process or proceeding.
  • Can make a complaint or inquiry related to their employment conditions.

For example, you can question why you weren’t granted personal leave or why money was deducted from your pay. It's unlawful for your employer to take negative action against you simply because you've exercised—or chosen not to exercise—your rights.

Proving the Link Between Adverse Action and Workplace Rights

The critical issue in a General Protections dispute is proving that adverse action was taken because of a protected reason. The Fair Work Commission will assess the facts and determine what likely happened based on the evidence.

If the adverse action wasn't taken for a prohibited reason, such as exercising a workplace right, there may be no breach. However, if there are multiple reasons and one is unlawful, that reason must be a substantial and operative part of the decision to qualify as a breach.

Discrimination

The General Protections provisions also protect against discrimination based on:

  • Race
  • Sex or sexual orientation
  • Age
  • Disability
  • Pregnancy or family responsibilities
  • Religion, political views, or social origin

Discrimination can be direct or indirect. For example, requiring full-time hours immediately after maternity leave could amount to indirect discrimination.

Sexual Harassment

Sexual harassment includes any unwanted or unwelcome sexual behaviour—such as advances, requests for sexual favours, or comments—that could reasonably cause offence, humiliation, or intimidation.

Protection Against Dismissal for Temporary Illness or Injury

You're protected from being dismissed if you’re temporarily absent from work due to illness or injury. However, this protection doesn’t apply if your absence exceeds three months or if you’re not on paid personal or carer’s leave for the entire period.

Sham Arrangements

Employers cannot disguise employment relationships as independent contracting arrangements. Even if a contract labels you as an independent contractor, if the overall relationship resembles that of an employer-employee, you may still be legally considered an employee.

Coercion and Undue Influence

An employer must not:

  • Threaten you to prevent you from exercising a workplace right (e.g., dropping a sexual harassment claim)
  • Pressure you unfairly to change employment conditions (e.g., deductions from your wages)

Freedom of Association

You're also protected from adverse action due to your industrial association membership or your choice to participate—or not participate—in lawful industrial activities.

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