"Adverse action" claims, together with colour blocking, are the current trend. Employees are increasingly seeking relief on the basis that they've been subjected to "adverse action" in breach of the "general protections" provisions in the Fair Work Act 2009.

Like all new styles, the rules are strict and the stakes are high. For a claim to succeed, the "adverse action" must be because of, or for reasons including, an employee exercising a "workplace right" which includes making a complaint or enquiry about their employment. "Adverse action" includes dismissal, injuring an employee in their employment, altering the employee's position to their prejudice and discrimination. Remedies for breach can include uncapped compensation and penalties.

The recent case of AFMEPKIU v Visy Packaging Pty Ltd (No 2) [2011] FCA 953 highlighted a further risk which employers may face; being subject to an interim injunction. In that case, a dispute between an employee and employer arose because the employee took steps to safety tag and "lock out" two forklifts which had ineffective reverse beepers. Such conduct was said to be an exercise of the employee's "workplace right" pursuant to state health and safety legislation. The employer subsequently suspended the employee (the subject of separate proceedings), conducted an investigation and issued a formal final warning to the employee.

The employer accepted, for the purpose of the interlocutory hearing, that the final written warning did constitute "adverse action" in that it altered the employee's position to his prejudice. However, the employer denied that the formal written warning was issued because of, or for reasons including, the employee exercising a workplace right and argued it was issued because of the employee's subsequent conduct.

In a less conventional move, the employee sought an interim injunction against the employer preventing the employer from issuing the formal final warning pending the determination of the substantive hearing. The Court found that the employee had a strong prima facie case that a reason for the final written warning was because the employee exercised a workplace right by tagging and locking out the forklifts and granted the interim injunction. As a result, the employer is prevented from issuing the formal written warning pending the hearing and determination of the substantive proceedings. The final determination of the claim remains to be seen.

An employer's reason for taking disciplinary action against an employee is more critical than ever. Employers must ensure such reasons do not fall foul of the general protections provisions to avoid committing this season's biggest faux pas.

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