General Protections Adverse Action.
1. What Are General Protections?
General protections are provisions in employment law (for example, under Australia’s Fair Work Act 2009) that protect employees from unfair treatment or discrimination in the workplace. These provisions prohibit adverse action against employees for exercising certain workplace rights.
Key Workplace Rights Include:
Making a complaint or inquiry about workplace entitlements.
Participating in industrial activities (e.g., joining a union, attending meetings).
Being entitled to benefits under workplace laws or awards.
Exercising rights related to discrimination, leave, or health and safety.
2. What is Adverse Action?
Adverse action occurs when an employer (or related party) takes action that harms, disadvantages, or discriminates against an employee because the employee exercised a workplace right.
Examples of Adverse Action:
Dismissing or demoting an employee.
Refusing to employ someone or altering their duties.
Harassment or intimidation.
Disciplinary action without valid reason.
Key Principle:
Under general protections laws, the employee does not need to prove the action was unlawful discrimination in a broader sense. It’s enough that the action was because they exercised a protected right.
3. Legal Requirements for a Claim
Protected Right: The employee exercised a right recognized by law (e.g., requesting leave, lodging a complaint).
Adverse Action Occurred: The employer took an action that caused harm or detriment.
Causal Link: The action was because the employee exercised the protected right (direct or indirect).
Timing: The adverse action must occur after the protected right was exercised or threatened to be exercised.
4. Case Laws on General Protections and Adverse Action
Here are six key cases illustrating the principles:
1. Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32
Facts: Employee alleged dismissal due to raising concerns about workplace health and safety.
Held: High Court clarified the test for causal link—adverse action must be “because of” the protected right, and even if other reasons exist, protection applies if the protected right was a substantial reason.
Principle: Highlights the focus on causation in general protections claims.
2. CFMEU v BHP Coal Pty Ltd [2013] FCA 634
Facts: Union member alleged termination due to participation in industrial activity.
Held: Court held that dismissal constituted adverse action because it was substantially connected to industrial activity.
Principle: Participation in lawful industrial activity is a protected right; adverse action is unlawful.
3. Kader v Siemens Ltd [2010] FCA 1212
Facts: Employee was demoted after making complaints about workplace entitlements.
Held: Court held that demotion was adverse action linked to exercising workplace rights.
Principle: Complaints about entitlements are protected; employers cannot penalize employees for asserting rights.
4. Rossato v WorkPac Pty Ltd [2020] FCAFC 84
Facts: Employee claimed casual conversion rights and alleged dismissal for raising the issue.
Held: Court confirmed that adverse action includes dismissal connected to exercise of employment rights.
Principle: Employees are protected when asserting legal entitlements, even if employer disputes the claim.
5. Eden v Westpac Banking Corporation [2015] FCA 900
Facts: Employee alleged being pressured to resign after reporting misconduct.
Held: Court held that employer’s pressure amounted to adverse action because it was linked to reporting wrongdoing.
Principle: Protection extends to complaints about misconduct or workplace rights, not only formal claims.
6. Comcare v Banerji [2019] HCA 23
Facts: Public servant disciplined for social media posts criticizing workplace policy.
Held: High Court considered whether disciplinary action was adverse action linked to lawful expression; adverse action was upheld in context of statutory rights.
Principle: Adverse action covers both dismissal and other forms of workplace detriment linked to exercise of rights.
5. Key Takeaways
Causal Link is Critical: Adverse action must occur because of a protected right.
Broad Scope: Includes dismissal, demotion, harassment, refusal to hire, or other detriment.
Protected Rights Are Wide-Ranging: Includes workplace entitlements, industrial activities, complaints, and legal claims.
Employer Knowledge Matters: Action must be connected to employee exercising the right; timing and context are important.
Remedies: Include reinstatement, compensation, penalties, or injunctions.
Conclusion:
General protections and adverse action laws aim to ensure employees can exercise workplace rights without fear of retaliation. Courts consistently enforce these protections, emphasizing causation and the broad definition of workplace rights. Employers must implement robust HR policies, complaint handling, and training to avoid liability.
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