The coach of the Australian cricket team, Mickey Arthur, was
dismissed a fortnight before the 2013 Ashes series commenced in
England. Arthur had been appointed to the position in November 2011
for a term that was set to expire at the end of the cricket World
Cup in 2015. In response to the dismissal, Arthur lodged an adverse
action claim against Cricket Australia with the Fair Work
Commission. On 31 July 2013, the parties reached a confidential
settlement agreement to resolve the matter before it proceeded to
hearing. The claim serves as a reminder to employers of the need to
be alert to any circumstances which may give rise to an adverse
action claim when contemplating dismissal.
Originally from South Africa, Arthur was the first foreign
national to coach the Australian cricket side. At the press
conference held to announce Arthur's dismissal, the Chief
Executive Officer of Cricket Australia, James Sutherland, is quoted
as saying that "the performance of the Australian cricket team
has not been up to standard" and "consistency of
behaviour, accountability, and discipline of behaviour, were
reasons [for his dismissal]". Details of the adverse action
claim lodged by Arthur have not been made public, however, it has
been reported that the claim was based on a number of grounds,
including alleged racial discrimination. Specifically, Arthur
claimed that he was discriminated against because of his South
African background and because of a perception that he didn't
understand the "Australian way". It was also reported
that Arthur was seeking reinstatement or AUD4 million in
compensation from Cricket Australia.
What are the Adverse Action Provisions?
The adverse action provisions of the Fair Work Act 2009
(Cth) came into effect on 1 July 2009. In summary, the provisions
prohibit an employer taking adverse action (which includes
dismissal) against an employee for a prohibited reason. The
prohibited reasons include, but are not limited to, an
employee's race, national extraction, age, disability,
pregnancy, union membership, industrial activity, and making a
complaint or inquiry in relation to their employment.
Unlike the unfair dismissal regime, there is no minimum
employment period or monetary threshold to lodge an adverse action
claim. Further, there is a reverse onus of proof for such claims.
This means that it is presumed that the adverse action was taken
for the prohibited reason unless the employer can show otherwise.
This can be an onerous burden to discharge.
In addition, to make out a contravention, it is sufficient if
the prohibited reason is just one of the reasons for the dismissal.
It need not be the only reason or the main reason. So, for example,
if an employee's race was just one of the factors taken into
account by an employer in deciding to dismiss the employee, the
claim will succeed.
An employer that has breached the adverse action provisions may
be liable to a range of sanctions, including a civil penalty of up
to AUD51,000 per breach, an order awarding compensation for any
loss or damage suffered as a result of the action (uncapped),
reinstatement of employment, and an injunction to stop or prevent
any threatened or continuing action.
Implications for Employers
Whilst adverse action claims are not limited to termination of
employment, employers need to be alert to any complaints, enquiries
or other circumstances which may give rise to such a claim when
contemplating dismissing an employee. If such a claim is lodged and
proceeds to hearing, the employer will need to demonstrate that the
prohibited reason/s had nothing whatsoever to do with the decision
to dismiss the employee in order to successfully defend the claim.
The employer will need to show that the decision was made purely
for lawful reasons, such as the employee's performance or
redundancy. In this respect, documentary evidence will be
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.
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for Women citation acknowledging our commitment to workplace
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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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