An adverse action occurs where an employer does or threatens to take an action against an employee by:
- dismissing or harming the employee;
- varying the employees’ position or salary; or
- discriminating against the employee in comparison to other employees.
An employee can also take an adverse action against its employer where the employer does or threatens to terminate their employment or commence an industrial action against the employer.
It is important to know that a claim of adverse action can also be made by prospective employees and independent contractors.
A claim of adverse action can only be invoked where the intention behind the conduct is prohibited, such as punishment for the exercise of or proposed exercise of a workplace right.
A workplace right includes:
- Privileges, rights or responsibilities provided for under workplace legislations or instruments or by an order made by an industrial body;
- One’s ability to commence proceedings under workplace legislations or instruments; and
- One’s ability to complain or inquire to an industrial body seeking that they order enforcement with workplace legislations or instruments.
If an adverse action has been taken against you it is critical that you seek expert legal advice as soon as possible as there are strict time limits enforced to make a claim. For example, where matters involve dismissal, there is only 21 days from the dismissal date for an application to be lodged with the Fair Work Commission.
Our experienced employment team have advised employees who have been wrongfully or unfairly dismissed from their employment, or who have exercised their workplace rights under the Fair Work Act 2009 and assisted in preparing Fair Work applications, appearing in Fair Work at conciliation conferences and hearings, and taking further proceedings in the Federal Court and Federal Circuit Court. We have also advised and appeared on behalf of employers responding to claims made by employees.