The recent Federal Court decision of Jones v Queensland
Tertiary Admissions Centre Ltd  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
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
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
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
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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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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