What is ‘adverse action’?
It is against the law for an employer to take adverse action against an employee for a prohibited reason. Adverse action is any action which alters the employee to their prejudice, causes real detriment or harm or results in dismissal.
An employer cannot take adverse action against an employee if it is because the employee is exercising a workplace right or engaging in industrial activity.
Workplace rights include taking leave, negotiating an enterprise agreement, taking protected industrial action, refusing unreasonable overtime, participating in dispute resolution, making a complaint or enquiry or reasonably refusing to work a public holiday. Industrial activities include recruiting employees to the union, seeking union advice, posting notices at work, joining the union, attending union training.
Basically, if an employee is exercising a workplace right or engaging in industrial activities, the employee cannot be harmed in any way at work.
The Fair Work Act 2009 describes the type of harm meant by adverse action. Adverse action taken by an employer includes doing, threatening to or organising to do any of the following:
- dismissing an employee
- injuring an employee in their employment
- altering an employee’s position to their detriment
- discriminating between one employee and other employees
- refusing to employ a prospective employee
- discriminating against a prospective employee in the terms and conditions offered.