Australia: Adverse Action - The New Unfair Dismissal

In brief

Employees who do not fit within the scheme of unfair dismissal, either because they are in their qualifying period or because they earn over the high income limit of $108,300, are permitted by the Fair Work Act to bring an even more serious claim related to adverse action.

What is an adverse action?

The key features of an adverse action claim are first, that there is a workplace right that the employee has undertaken, requested, queried or had withheld, such as conducting union related activities or raising concerns they might have in relation to Occupational Health & Safety (e.g. failure to issue safety eyewear). The second feature of an adverse action claim is the allegation that you, as an employer, have made a decision to take some steps to deal with the worker in an adverse way.

Adverse treatment could include things such as cutting employees' overtime, changing their shifts from weekend to mid-week, cancelling their annual leave or forcing them to take it, demoting them, or, most obviously, terminating their employment.

Under the Act, it has to be established that there is a causal nexus, that is, that the workplace right was the motivating reason for the business taking that adverse action. From an employer's perspective, the most alarming aspect of the legislation is that there is a reverse onus on the employer to prove that the assertion of the workplace right by the worker was not the reason that the employer took the action in question.

Bendigo TAFE and the Australian Education Union

A recent decision of the Federal Court concerns an employee in a TAFE college in Victoria, Mr Barclay, who was the sub-branch president of the Australian Education Union. There was an audit of the facility approaching and prior to the audit, Mr Barclay sent an extremely inflammatory email to all staff at the TAFE college, suggesting that management was coercing staff into "putting together false/fraudulent documentation or participating in these types of activities".

Unsurprisingly, the CEO of the TAFE was fairly concerned that these allegations were being made immediately prior to the auditor's arrival. She was also genuinely concerned that Mr Barclay was going to continue with this course of conduct. Consequently, Mr Barclay was stood down for the period of the audit on full pay. Mr Barclay, via the union, asserted that this amounted to an adverse action against him, as Bendigo TAFE had stood him down because, amongst other reasons, he was an officer of the union and he was engaged in legitimate union activity.

The question before the Federal Court was whether or not Mr Barclay had been stood down because he was an officer of the union and he was engaged in legitimate union activity.

The union's position

The union argued that, ultimately, the court had an obligation to make its own independent assessment, regardless of the evidence of the CEO, of whether the two factors were the reason for the TAFE taking the adverse action. The court did not see it that way. Rather, it thought that the intentions of the employer were highly relevant. Accordingly, evidence from the CEO of the TAFE as to why she took that action was important in making that decision.

The evidence of the TAFE CEO

On this particular occasion, the CEO gave detailed evidence that she conducted an investigation of Mr Barclay's behaviour, including giving him an opportunity to reply to the allegation. In particular, she gave evidence that her reasons at the time for excluding him from the campuses and suspending his email access were because she did not want him on the premises while the auditors were there and she did not want any other unfounded allegations to be made during the audit to the detriment of the TAFE. She went on to say that she had not even considered the fact that Mr Barclay was a union member or that he may have been conducting industrial activities.

The court accepted her evidence and made a finding in favour of the employer.

Shortcomings of the Fair Work Act

Clearly, it is a serious shortcoming of the Fair Work Act that in this situation the onus is on employers to prove their innocence, rather than their innocence being assumed until they are proven guilty. While it is encouraging that on this occasion the court was willing to accept the evidence of the employer, unfortunately there is no guarantee that another court will take a similarly sensible approach.

Lessons for employers

Employers are well advised to take heed of the potential pitfalls in the legislation. In particular, if you have an an employee who is making comments about OH&S issues, making enquiries about reporting injuries for Workers Compensation purposes or complaining that he/she is not being paid a particular allowance, be particularly careful about disciplining them - even during the first 6-12 months of employment.

If you want to take action against that person for other matters relating to performance or other forms of misconduct or, indeed, the fact that they have established a pattern of complaining, you have to be crystal clear in your documentation and in your counselling that it is those matters that are driving you to take this action. It is imperative that you avoid giving the worker the opportunity to point to you as an employer who has put up with misconduct of a similar nature on the part of other workers without taking action.

Swaab was recently named a 2009 Winner in the ALB Employer of Choice awards, and was winner 'Best Law Firm in Australia (Revenue < $20m)' and 'Attribute Award for Exceptional Service (Australia Wide)' in the 2008 BRW- Client Choice Awards.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Mondaq Advice Centre (MACs)
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.