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Avoiding adverse action – Dealing with employee enquiries

Avoiding adverse action – Dealing with employee enquiries

Published on February 9, 2012

Since the passage of the Fair Work Act (2009), employers have been obliged to consider the myriad of changes enacted by the legislation, particularly in relation to the National Employment Standards and the expansion of the Unfair Dismissal jurisdiction. However, it is perhaps the new General Protections available in relation to ‘adverse action’ and ‘workplace rights’ that ought to demand the most attention from employers. The potential for the exercise of workplace rights to be followed by adverse action and the operation of the reverse onus on employers, means that employers need to adapt their HR policies to avoid falling foul of the new provisions.
Under Part 3-1 of the Act, it is unlawful for an employer to subject an employee (or prospective employee) to adverse action on particular grounds. These grounds can include the personal characteristics of the employee, absence due to illness or injury, coverage by particular industrial instruments, or the exercise of a workplace right. A workplace right is essentially defined as a benefit, role, responsibility or remedy arising under a workplace instrument but also extends to the making of a complaint or enquiry in relation to the employee’s employment. By operation of the latter workplace right, an employee may be bestowed with additional industrial protection if that employee makes a complaint or enquiry with their employer in relation to his or her employment. If that employee is then subjected to adverse action (which could include dismissal or action falling short of dismissal such as a prejudicial alteration to the employee’s position), then that employee may be entitled to bring a General Protections claim against the employer. The employer then bears the onus of proof in establishing that the action taken was not for the reason of the complaint or enquiry.
What this means in practice is that an enquiry or complaint to an employer by an employee, exercising a workplace right, could operate as a pre-emptive ‘shield’ should the employment relationship subsequently break down. Previously, if an employment relationship broke down irretrievably due to an employment dispute, an employer was entitled to invoke the doctrine of frustration and terminate the employment with the giving of the appropriate notice (subject to Unfair Dismissal considerations). By virtue of Part 3-1, such a termination may be unlawful if the breakdown arose due to employer action taken following an enquiry regarding employment. Furthermore, as any purported change to an employment position may well have resulted in an enquiry or complaint by the employee, the potential for these claims to arise is very real, particularly so with respect to vocal or disgruntled employees.
The Federal Magistrates Court has recently ruled on one such adverse action claim in the case of ALAEA v Qantas Airways Ltd & Anor [2011]. In this case a Licensed Aircraft Maintenance Engineer (LAME) employed by QANTAS (and a Brisbane-based member of the ALAEA) exercised workplace rights by making inquiries with his manager regarding certain shift allowances whilst on an overseas roster. The employee also complained about allegedly poor assistance provided by Qantas in relation to a health issue suffered whilst on duty overseas. Following this enquiry and complaint, the manager was said to have ordered the suspensions of all overseas rostering for Brisbane LAMEs until they confirmed in writing that they agreed with their existing shift allowances. The employee was also allegedly advised that “the guys who accept their conditions… are the ones who get asked to go away next time.” It was held that the suspension of overseas rostering for the Brisbane LAMEs was a detrimental alteration of their employment terms and constituted discrimination between them and other Qantas engineers. It was also held that the comment constituted unlawful coercion and a threat against the exercise of the employee’s workplace rights. Accordingly, Qantas was ordered to pay a civil penalty under the Act.
The above case and the broad scope of the jurisdiction obliges employers to stay abreast of developments in this new jurisdiction to ensure that any action taken in dealing with active or vocal employees does not give rise to adverse action claims. 

Workplace Solutions at Carroll & O’Dea can advise employers in relation to potential areas of liability in this area.

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