General Protections - Employee Immunity From Dismissal When Exercising A Workplace Right
Under the Fair Work Act 2009 (Cth) (‘the Act’), an employee may be protected from dismissal or for any other “adverse action” that they have suffered, such as demotion or disciplinary warning, if they are able to demonstrate that a reason for the dismissal or other action was the exercise or proposal to exercise a “workplace right”.
A person has a workplace right if the person:
- is entitled to the benefit of a workplace law, workplace instrument or an order made by an industrial body;
- has a role or responsibility under a workplace law, workplace instrument or order made by an industrial body;
- is able to initiate or participate in a process or proceedings under a workplace law or instrument;
- is able to make a complaint or inquiry to a person or body with capacity to seek compliance with a workplace law or instrument; or
- is able to make a complaint or inquiry in relation to his or her employment.
Adverse action is taken by an employer against an employee if the employer threatens to, organises or takes action by:
- Dismissing the employee;
- Injuring the employee in his or her employment;
- Altering the position of the employee to the employee’s prejudice; or
- Discriminating between the employee and other employees of the employer.
In adverse action claims, there is a reverse onus on employers to establish that they did not take adverse action because the employee had a workplace right.
The key requirement in adverse actions claims is that the adverse action taken by the employer was because the employee exercised a workplace right. The workplace right need only be a reason, not the only reason, for the action. This is a question of fact which the Commission will determine based on the circumstances of the evidence presented by both the employer and employee.
In Collison v Brighton Road Enterprises Pty Ltd  FCCA 186, an employer took adverse against an employee by dismissing her upon exercising her workplace right to take sick leave.
During the course of her employment, the employee became distressed over a reprimand by the employer and subsequently took one week’s sick leave, as recommended by her doctor and documented in a medical certificate. The employer responded callously which aggravated the employee’s condition and required her to take an additional week of sick leave. In response, the employer informed the employee that her paid sick leave was exhausted and any workers compensation claims was likely to fail. The employer also requested to speak with the employee’s doctor and warned that if she failed to follow this request, disciplinary action including dismissal would be taken. The employee engaged a lawyer whom wrote to her employer stating she would not be returning to work until further notice, due to her current state of health. The employer then dismissed the employee, noting that he would re-employ her if she provided satisfactory medical information about her capacity to return to work.
Upon consideration, the Federal Circuit Court found that the reason for the dismissal was because the employee exercised her workplace rights. Specifically, her workplace rights included paid sick leave, pursuing a workers’ compensation claim and enquiring about her employment. In breach of the Act, the employer was ordered to pay $35,000 and the director to pay $7,000, to the employee.
For employers, it is important to understand the adverse action provisions, and when employees have workplace rights. Clearly, the case demonstrates that employers must tread carefully when dealing with employees on sick leave but it should not, however, discourage employers from making genuine enquiries where the absence appears improper.
To safeguard your decisions, ensure your decision-making policies set out clear guidelines, and follow them with due process – we cannot stress this enough. The courts will always look at the process the employer took leading up to the employee’s termination.
Under the adverse action jurisdiction, there is a broad application and wide variety of circumstances other than sick leave that ignite adverse action claims. Therefore, employers should seek legal advice before terminating employees or taking any action that may disadvantage the employee.
For employees, do not be afraid to exercise your workplace rights in fear of your employer’s response. The legislation specifically protects you from adverse action, and you may be entitled to monetary and non-monetary remedies if your employer breaches this provision of the Act.
The information contained in this publication is intended to provide general information and should not be relied upon as legal advice.
Article by Tabitha Vockler, Law Graduate