subject: Understanding The Risk Of Adverse Action [print this page] Are you familiar with what constitutes adverse action? The following case study will help clarify what constitutes an adverse action claim.
A female director at a child care centre has been awarded $8,956.01 in lost wages and an additional $5,500 penalty in a claim under the general protections provisions of the Fair Work Act 2009 (Cth) (The Act). In delivering a decision in Ucchino v Acorp Pty Limited [2012] FMCA 9, Federal Magistrate Jarrett stated that; the contraventions strike at the heart of the protections afforded to employees. He considered the circumstances surrounding the ending of the applicants employment, including her request for unpaid leave for family commitments, as well as for maternity leave.
The general protections claims available under the Act are steadily gaining favour with employees who either do not qualify for unfair dismissal claims because of time constraints, or who feel they have been unfairly treated in the workplace.
So how should employers deal with potential adverse action claims and tricky situations?
The case of Ucchino highlights three errors made by the Respondent:
1.After the applicant exercised a workplace right, the employer took steps to change the employees position so that her job-role was dramatically altered (the terms and conditions of her employment.)
The applicant applied for and was granted a period of unpaid leave as she was not able to find anyone to care for her children in the school holiday period. After a month on leave, she informed the respondent that she would be requiring a period of maternity leave as she was pregnant. On her return to work after the period of unpaid leave, her position was no longer the managerial role she previously had, and she was instead left with a staff relief float role that involved a significantly lower level of responsibility.
-Employers should ensure that any potentially significant and agreed changes to an employees position are discussed thoroughly with the employee and recorded in writing.
2. After changing the employees position, the respondent articulated that its actions were due to the employee exercising a workplace right.
After returning to work, the applicant had a conversation with a manager of the respondent, in which it was stated that; youre going to make it hard for me, being pregnant in your position, for the business. After stating that she was hoping to enter arrangements including a loan from her bank to make it easier for her to balance her responsibilities, the manager stated; we can still make it hard for you.
-Employers should be very careful not to be seen to threaten an employee, or try to stop an employee from exercising his/her workplace rights. If there are any potential business issues, these should be handled as professionally as possible and discussed with the employee, otherwise there is a risk of an adverse action claim.
3. Following the applicants requests to exercise workplace rights the respondent moved to a performance meeting to raise issues never before mentioned to the employee, and effectively then sought to change her employment status
After handing in a request for maternity leave, the applicant was subject to a performance review meeting whereby a document was presented detailing a number of issues that had not been recorded or brought to her attention. The document stated that due to these issues, her position as a permanent employee was terminated, and alternatively, she was offered casual employment where she would no longer be paid sick leave or holiday entitlements.
-Employers should be very careful when attempting to change the status of an employee. Any changes should be agreed between the parties. Furthermore, any issues with an employees performance should always be discussed when it occurs, and the employee warned if their employment is at risk of being terminated.
4. After the employee refused the change in status, the respondent tried to rely on her refusal as a resignation, and then replaced her.
After the applicant refused the change in status and to return to work, the respondent sent her an email stating that; we take your refusal to return to work at no notice as yourself terminating your employment with us. She was then promptly replaced.
-Any changes to the status of a permanent employee should involve the consent of the employee affected.
This case indicates the many mistakes that a business can make when attempting to navigate the many workplace rights which an employee may have to an adverse action claim.
