ARTICLE
1 September 2014

What is adverse action in employment?

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Watkins Tapsell

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If an employee makes a claim, the onus of proof is on the employer to prove that an adverse action has not occurred.
Australia Employment and HR

An Adverse Action set out in Section 240 of the Fair Work Act which says;

"(1) A person must not take adverse action against another person:

  1. because the other person:
    1. has a workplace right; or
    2. has, or has not, exercised a workplace right; or
    3. proposes or proposes not to, or has at any time proposed or proposed not to, exercise a workplace right; or
  1. to prevent the exercise of a workplace right by the other person. "

Some practical examples of Adverse Action are:

  • Terminating a person's employment due to them making a complaint, making a workers compensation claim
  • Refusing to employ on discriminatory grounds such as race, religion, sex, sexual preference, marital status, family responsibility etc
  • Discriminate in the terms of the employment
  • Refuse to employ due to union membership status
  • An employer lying about what a job entails
  • Offer a sham contract
  • Offer employment only on the basis an employee gives up a right.

If an employee makes a claim, the onus of proof is on the employer to prove that an adverse action has not occurred.

The time limit to make a claim for adverse action is 21 days after termination.

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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