Defending an Adverse Action Claim
An adverse action is any action that’s results in a disadvantage for the employee or alters their position unfavourably. Examples of adverse action include:
- Dismissal, refusal to employ
- Discriminating between an employee and other employees in the workplace
- Injuring an employee during their employment
- Not giving an employee their legal entitlements
However, an adverse action is not always unlawful. It is only considered unlawful if it is taken against an employee because they have an attribute or are engaging in an activity that is protected under the general protections provisions of the Fair Work Act 2009 (Cth).
For employers, disproving an adverse action claim can be difficult, even if their actions were not taken for an unlawful reason. This is because employers will be required to prove that the complaint is not justified in the circumstances.
Employers will be in a better position to defend adverse action claims if they have:
- Complied with their business policies, procedures and practices when taking adverse action
- Removed the person that has taken the adverse action against the employee from the dispute resolution process to ensure procedural fairness
- An established reason for the adverse action and communicated them to the employee
- Accurate documentation of all decisions relating to employees
- Ensured that the decision-maker has a suitable explanation for taking the adverse action
If you require any further information or assistance in relation to defending an adverse action claim, contact our team of lawyers at The Quinn Group on (02) 9223 9166 or submit an online enquiry form today.