We use cookies to ensure we give you the best experience on our site. If you continue without changing your settings, we assume
you're happy to receive all cookies on this site. If you would like to, you can manually change your cookie settings at any time.
MSI Australia & New Zealand - Global Site Memberlink Login

adverse actionsBy Rodney Commins, Patterson Houen Commins, Lawyers, Sydney

Recent cases in the Federal Circuit Court have highlighted the need for employers to have in place sound procedures when considering changing working conditions, disciplinary or employment termination matters, so as to reduce the prospects of successful adverse action claims against them under the Fair Work Act.

Adverse Action

This is particularly important where an employee makes a disputed claim that the employer has taken adverse action (such as terminating the employment) against him/her because he/she has exercised a workplace right.  The success or otherwise of such a claim, bearing in mind that the employer has the onus of proving that the action was not taken because the employee had exercised a workplace right, is often determined by the evidence of the employer decision maker.

Decision Makers

The takeout from this is even if you don’t have a dedicated HR department, serious employment issues should be determined by carefully qualified and, where practical, a limited number of decision makers.

Ideally, the decision makers:

  • Should be aware of their obligations and the liabilities and penalties their employer may face if employment issues are not handled appropriately;
  • Should keep notes and records of the reasons for their decisions with reference to any backup material; and
  • Should be contactable and available to give statement and evidence on behalf of the employer even if they have left employment before any claim arising out of their decision has been made.

We recommend you seek professional support to help you establish the appropriate procedures.

Contact the author directly by email or by telephone.

Search for your local professionals

To find your local member, please use one of the options below:

Select a member from the following list

X
X

 

Contact Us

To contact one of our member firms in Australia and New Zealand, please complete the form below. All emails sent via this website are monitored on a daily basis.

Send us a Message

Please leave this field empty.

Please select a member firm from the map below to contact them directly:


Members Map
To view our global listings, please click here.