"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
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
The recent case of AFMEPKIU v Visy Packaging Pty Ltd (No
2)  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
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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Long experience representing many of Australia's leading employers has taught us that in employment litigation the identity of an employee's representative is a major factor in how employee litigation runs.
Australian employees receive certain entitlements (such as annual leave and superannuation) where contractors do not.
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