Australia: Use of new adverse action provisions (Fair Work Act)

Last Updated: 6 January 2010

The recent Federal Court decision of Jones v Queensland Tertiary Admissions Centre Ltd [2009] FCA 1382 (25 November 2009) provides an example of how employees are using the new adverse action provisions of the FW Act to restrain an employer in the exercise of its discipline processes.

Ms Jones is the Chief Executive Officer (CEO) of Queensland Tertiary Admissions Centre (QTAC), a role she has occupied for several years during which time it is reported her relationship with her employer has been uncontroversial.

From July 2009, Ms Jones was involved in enterprise bargaining negotiations on behalf of QTAC with the Australian Services Union (ASU). During the negotiation period, Ms Jones was the subject of complaints made to QTAC by employees and by the ASU. As a result of an inquiry instigated by QTAC into the complaints, QTAC formed the opinion that Ms Jones' behaviour constituted "bullying or harassment of employees".

On 16 November 2009 Ms Jones filed an application for interlocutory relief in the Federal Court to restrain QTAC from taking any disciplinary action against her, including terminating her employment on the basis, amongst other things, that such action by the employer would constitute adverse action.

Of concern to Ms Jones was not only the potential damage to her reputation from the investigation, which she believed to be improper, but also the prospect of her employment being terminated in light of its findings. In seeking interlocutory relief, Ms Jones argued that damages would not be an adequate remedy and that on the balance of convenience, an interlocutory injunction should be granted, pending a final hearing and determination of her claim.

The Fair Work Act provides that a person must not take "adverse action" against another person because the other person has a workplace right or has not exercised a workplace right. A "workplace right" includes the employee having a role or responsibility or participating in a process under workplace law.

"Adverse action" is taken by an employer against an employee if the employer dismisses the employee, or injures the employee in his or her employment or alters the position of the employee to the employee's prejudice. Threatening to take such action also amounts to adverse action.

The Court made the following findings in deciding to grant Ms Jones an interlocutory injunction:

  • the commencement of an investigation into the complaints against Ms Jones could arguably constitute adverse action, as could the threatened disciplinary action against and termination of Ms Jones' employment
  • Ms Jones' participation in the process of making an enterprise agreement or carrying out her purported role as bargaining representative could arguably constitute the exercise of a workplace right.

In justification of granting interlocutory relief, the court stated that the discipline of a CEO, especially in the form of termination of employment, for allegedly creating a culture of fear or terror in the workplace is a serious matter. Such a course of conduct could potentially harm Ms Jones' reputation and seriously impact her future career prospects. It was therefore appropriate to preserve the status quo until the matter could be resolved at the next stage of proceedings.

The Court's ruling in Ms Jones' favour demonstrates the varied manner in which employees will be able to avail themselves of the general protection provisions of the Fair Work Act during their employment and the potential of the provisions to curtail employers in their ability to discipline or performance manage their staff.

Employers will need to exercise care when performance managing or seeking to terminate the employment of an employee who has or has exercised a workplace right. Employees will also need to enquire about whether or not a complaint or enquiry about employment has been made in order to assess the risks associated with a proposed action including proposed termination of employment.

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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