Since the introduction of the Fair Work Act, there has been a lot of speculation about the scope of actions concerning "adverse action" against an employee because the employee has exercised "workplace rights". 

Two recent cases illustrate the application of the prohibition on "adverse action". 

In the first case, Bendigo TAFE suspended an employee for a period during which an accreditation audit was being conducted, because of an email Mr Barclay had sent in the lead up to the audit. Mr Barclay was President of the local sub-branch of the union. His email alleged that members had complained of being asked to produce false or fraudulent documents for the audit (surely that would never happen?). 

He declined to provide any information to Bendigo TAFE to support this allegation. 

Mr Barclay made an application alleging that the suspension was adverse action related to him exercising his rights as a union official. Bendigo TAFE argued that the issue was not his union role, but the intemperate email alleging dishonest conduct by others, unsupported by any evidence. Mr Barclay lost before the judge who first heard his claim in the Federal Court, but won in the Full Court on appeal. 

The majority of the Full Court held that it was impossible to separate Mr Barclay's conduct from his role as a union official, however wrong-headed or intemperate his conduct may have been: this should have been dealt with as an employer/union issue rather than an employer/employee issue. 

The moral of this case is that employers need to take extreme care when taking disciplinary action against an employee who is also involved in union activity, and to be very careful that the conduct in question relates to conduct clearly in his role as an individual employee and not in any way connected with union activity. 

In the second case, Mr Murray was a ground crew employee for Qantas, seconded for a period to work at Narita Airport in Japan. There was some confusion about which pay rates applied to employees seconded in this way, and when Mr Murray raised concerns about this, his manager became angry. Shortly afterwards all postings for Brisbane ground crew to overseas airports were suspended while Qantas tried to resolve the issue, and email comments by the manager referred to overseas postings being more likely to be available to those who didn't complain about the arrangements. 

The suspension of overseas postings meant that Mr Murray was deprived of the opportunity for another overseas posting, although it was unlikely that he would in fact have received another overseas posting in the short term as they were allocated on a rotating basis. 

However, the Court concluded that, nevertheless, this did amount to adverse action against Mr Murray, because he had exercised his right to raise issues regarding the pay structure (which were in fact found to be well founded). 

It is critical when contemplating action which may appear to be detrimental to an employee to consider whether there are any risks in the background arising from, for example, complaints about pay or safety issues, or any issue which might amount to discriminatory conduct, as these could form the basis for an adverse action claim even if an unfair dismissal claim is not possible. 

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.