Australia: Agribusiness employers take note: the scope of adverse action claims is increasing

Last Updated: 6 January 2015
Article by Stephen Trew

In a recent decision the Full Bench of the Federal Court refused to restrict the definition of a workplace right under the General Protections provisions in the Fair Work Act 2009 (Act). This means that there will continue to be a broad application of what constitutes a workplace right.

Employers in the agribusiness industry need to be fully aware of this.

The General Protections provisions in the Act provide that adverse action, which includes dismissal or any other prejudice in the course of employment, cannot be imposed upon an employee by reason of their having and/or exercising a "workplace right". In turn a workplace right is defined to include, for example, the exercising of a right under a workplace law or the ability to make a complaint or inquiry in relation to the employment.

How far do these provisions extend?

There have been a growing number of decisions exploring the scope of these provisions given that any breach exposes the employer (as well as individuals culpably involved in the breach) to civil penalties and also the employer to uncapped compensation orders.

Some of the existing issues that courts are yet to finally determine include:

  • Whether the ability to make a complaint or inquiry must be derived from an actual entitlement under a workplace instrument, including an employment contract.
  • How strong the required connection between the complaint and the complaint maker's employment needs to be.

These types of questions are important because employees make all types of complaints or inquiries during the course of their work. For example, if an employee complains generally about the conduct of their manager or the strategy or direction of the business and is then retrenched from their employment could they raise a claim under these provisions? In these circumstances, the question is whether the employee can allege that the fact of their complaint was the exercise of a workplace right under the Act. If so, the employer will have the onus to prove that the fact of the complaint was not a reason for the decision to retrench the employee. In this particular example, the position would most likely be that without some particular connection back to the employee's employment, the complaint was not in relation to their employment but more generally the conduct of the business. If so, the claim could not be made out.

The General Protections provisions under the Act provide for a reverse onus of proof placed on employers for these claims. This means that under these provisions, once the employee makes the application, it is up to the employer to disprove that the alleged "unlawful" reason had anything to do with the adverse action taken against the relevant employee.

Example

The scope of these provisions was recently considered by the Full Bench of the Federal Court in Shea v Energy Australia Services Pty Limited. In these proceedings, Ms Shea argued that her complaint that she had been subjected to sexual harassment and then a further complaint concerning the outcome of the investigation into the sexual harassment complaint were reasons why she was later made redundant in a group restructure. In the initial decision, the Court found that these complaints were not a reason for the termination of her employment and that there had been a genuine redundancy for operational reasons. However, the Court also held that in order for a "complaint" to fall within the bounds of the General Protections provisions in the Act, it must be "genuine". This would then require the Court to consider first whether any alleged "complaint" was genuine prior to determining whether or not the onus of proof had shifted to the employer to prove the reasons for any adverse action.

Full Bench says no such restriction

The Full Bench rejected Ms Shea's appeal on a range of grounds and was therefore not required to decide specifically whether the trial Judge was correct in saying that there was a requirement for any "complaint" to be "genuine". However, it did say that it was of the view there should be no such restriction on the jurisdiction and that there is no need for a Court to decide whether or not a particular complaint is "genuine". All that is required is for the Court to determine that there is a relevant complaint and then for it to determine whether a breach of the Act has occurred having regard to the reverse onus of proof.

The Full Bench did not wish to place any constraints on the operation of the General Protections provisions of the Act but wished to ensure that they had a wide operation. This decision further supports a broad approach being taken to the outstanding issues detailed above.

This decision does not mean that the genuineness or otherwise of a complaint has no role in a Court decision. The genuineness of any complaint will go to whether it in fact was a reason for the adverse action and therefore, whether the employer has met its burden of proof. It still has a critical role to play as part of a Court determining the actual reason for any adverse decision but it will not be a separate threshold matter that a Court will be required to determine.

Implications for employers

This decision together with earlier decisions supports the Courts taking a broad approach to what will qualify as a complaint or inquiry in the exercise of a workplace right, in order to invoke the protections under the General Protections provisions of the Act. This means that employers need to be very careful in the following matters:

  1. identifying when an employee has made a complaint or inquiry;
  2. being careful to ensure that any process leading to a decision adverse to the interests of a particular employee is not influenced by any such complaint or inquiry either expressly or subconsciously;
  3. ensuring an individual is indentified as the decision maker and can speak to the information they had regard to and the reasons for the decision; and
  4. ensuring there is a structured decision making process, so that the employer is ready to meet any allegation that the adverse decision was because of, or influenced by, the workplace right exercised by the relevant employee.

This publication does not deal with every important topic or change in law and is not intended to be relied upon as a substitute for legal or other advice that may be relevant to the reader's specific circumstances. If you have found this publication of interest and would like to know more or wish to obtain legal advice relevant to your circumstances please contact one of the named individuals listed.

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

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

Authors
 
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
Tools
Print
Font Size:
Translation
Channels
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
Password
Confirm Password
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (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 www.mondaq.com

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 Mondaq.com’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.

Disclaimer

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.

Registration

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 unsubscribe@mondaq.com 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.

Cookies

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.

Links

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.

Mail-A-Friend

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.

Security

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 webmaster@mondaq.com.

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 EditorialAdvisor@mondaq.com.

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 enquiries@mondaq.com.

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