Articles > Employment

What is Adverse Actions in the Workplace?

February 6, 2022   Philip Evangelou

Adverse actions are actions taken by either an employee or an employer which are deemed unlawful by the Fair Work Act 2009 (‘FWA’). Section 342 of the FWA provides further guidance as to what constitutes an adverse action. 

Adverse Action towards Employees 

Under the FWA, an employee is able to bring action for adviser action against an employer if:

  • The employer dismisses the employee for discriminatory reasons such as their gender, race, political beliefs and ethnicity 
  • The employer injures the employee in the duration of their employment
  • The employer alters or changes the employee’s position due on a discriminatory basis; or
  • The employer discriminates the employee from the rest 

It will not be considered an adverse action if the employer stands down an employee if:

  • Employee is engaged in industrial protected action; or
  • The employee is operating under a contract which permits an employer to terminate employment under the described circumstances 

You do not have to necessarily be employed with a company for adverse actions to be taken against an employee, prospective employers can also be liable for adverse action if they:

  • Refuse to hire a prospective employee due to a discriminatory reason; or
  • Discriminates against the prospective employee in the conditions of their future employment

Who Else Can Face Adverse Actions in the Workplace?

Experiencing adviser actions in the workplace is not limited to employees only, some other categories specified by the FCA include:

  • A person who has entered a contract (the principal) with an independent contractor against the independent contractor; and vice versa
  • Principal, proposing to enter a contact with an independent contractor, against the independent contractor and vice versa
  • Employee against employer
  • Industrial association against a person

What to Do if You Think an Adverse Action has been Taken Against You?

The next steps you would take is to either file a general protection application with the Fair Work Commission or to report employer/employee for adverse action with the Fair Work Ombudsman.  There are two different scenarios for which you can apply for an application:

  1. Dispute not involving dismissal: this is where the employee has not been dismissed but still has faced an adverse action in the workplace
  2. Dispute involving dismissal: the employee has been dismissed on a discriminatory basis 

After the complaint or application has been lodged, it will be determined whether an adverse action was taken. In the case there is a finding of adverse action, the party may be liable to penalties.

If you would like more information or advice on adverse actions in the workplace, please contact us through the contact form or by calling us on 1300 377 997.

About Philip Evangelou

phillipPhil is a director at OpenLegal. He has over 16 years experience working in private practice and in-house counsel in Sydney and London, giving him expertise in employment law, IP, finance, leases, dispute resolution, insurance and contracts.