![]() In circumstances where a person has been dismissed after making a complaint or enquiry, it is important to promptly seek legal advice to assess whether they may be entitled to make a claim. However, there needs to be a sufficient connection between the complaint or enquiry and the employee’s employment. It is unlawful for an employer to take adverse action against an employee because the employee has made a complaint or enquiry in relation to their employment.Ĭourts have taken differing views on what constitutes a complaint or enquiry. The Fair Work Commission can only grant extensions of time in exceptional circumstances. In cases where a person has been dismissed applications must be made within 21 days after the dismissal took effect. While time limits for lodging claims are the same as for unfair dismissal, damages are uncapped and the reverse onus of proof means the employer is effectively presumed to have contravened the act until proven otherwise. The minimum employment period that exists before an employee can make an unfair dismissal application does not apply to a general protections application. General protections are accessible by a wider range of people that can make application for unfair dismissal and provide broader remedies including injunctions. Firstly, they are open to prospective and current employees as well as contractors and other workers, so it is quite broad. General protections present considerable risks for employers for a number of reasons. It should be noted that adverse action can also be taken against contractors and potential contractors. Discriminating between the employee and other employees of the employer.Altering the employee’s position to the employee’s detriment.Injuring the employee in their employment.These circumstances include actions taken by an employer against an employee for: The events below describe the circumstances in which a person may have an adverse action against another person. Let us look at specific events that may be regarded as an adverse action. The onus of proof lies with the employer, who must then prove that the adverse action was not a result of the employee attempting to exercise their workplace rights. Under the legislation, any adverse action against an employee will be presumed to have been taken for an illegitimate reason unless the employer can prove to the contrary. In simple terms this means that any disciplinary action taken against an employee, such as a suspension, or even a written warning, could constitute an adverse action. This is action taken by a person or industrial association that is deemed unlawful under the General Protections provisions of the Act.Īn adverse action can be anything that affects an employee adversely. An employer contravenes the Act if the employer takes “adverse action” against the employee (for example, by dismissing the employee) because of the employee’s workplace right. It is not well known that the Fair Work Act provides that an employee has a “workplace right” if the employee is able to make a complaint or inquiry in relation to his or her employment.
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