Posts: Adverse Action

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Adverse Action

The onus and presumption in adverse action matters

It’s on you

Under the general protections provisions in the Fair Work Act 2009 (Cth) (FW Act), it is unlawful for a person to take adverse action against another person for a proscribed reason. One of the features of the general protections provisions under the FW Act is the presumption that adverse action was taken for a proscribed reason unless it is proven that the adverse action was not taken for that reason.

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Webinar: What You Need to Know: The Rise of Adverse Action and Unfair Dismissal Claims

2020 continues to deliver unprecedented challenges to employers as they manage the economic and workplace culture impact of COVID-19. Difficult, but necessary, decisions taken in relation to workforce numbers together with increased poor employee behaviour has seen a dramatic rise in the number of unfair dismissal and adverse action claims.

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A-League club facing adverse action claim in Court

A-League club facing adverse action claim in Court

It is sometimes forgotten that sporting clubs and organisations are employers who are also subject to workplace laws and regulations in relation to their employees.

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Adverse action claim initiated against professional football club

Adverse action claim initiated against professional football club

The Chief Operating Officer of Macarthur and South West United FC has launched legal proceedings against the Club, the Club Chair and another director alleging breaches of the general protections provisions under the Fair Work Act 2009 (Cth).

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Penalties ordered against union that “charged” members who chose not to engage in industrial action

Fully charged

The Federal Court of Australia has ordered the Australian Workers Union (AWU) to pay $18,000 in penalties following its pursuit of disciplinary action against its own members.

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Lawyer dismissed for publicly criticising clients

Destructive criticism

When considering claims of adverse action under the Fair Work Act 2009 (Cth) (the FW Act) a key focus of inquiry is the actual reasons of the decision-maker for engaging in the action.

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Employer awarded $35,000 in costs after defeating adverse action claim

Weighing the costs

In a matter recently before the Federal Circuit Court of Australia an employer successfully claimed that an employee acted unreasonably in the course of proceedings and the employer was awarded costs of $35,000.

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Common misconceptions about dismissing an employee in their probation period

Free free, set them free!

An employer was ordered to pay $10,000 in compensation to a former supervisor who had been dismissed five months into her probation period.

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Adverse action taken against employee for failure to perform duties

Muddying the waters

The general protections provisions under the Fair Work Act 2009 (Cth) (FW Act) make it unlawful for an employer to take adverse action against a person for a prohibited reason.

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Can a computer be the decision-maker in an adverse action decision?

I’m sorry, Dave. I’m afraid I can’t do that

As the functionality of HRIS increases and technology generally gets smarter, will an employer’s reliance on the recommendations or decisions of a HRIS put the employer at risk?

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Coles loses appeal of $1 million claim for safety step injury

And a step to the right

ACT Court of Appeal has dismissed an appeal by Coles Supermarkets and confirmed an earlier decision in which a Coles employee was awarded more than $1 million in damages.

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$200,000 penalty imposed for adverse action taken against employees underpaid because of their race

Losing on penalties

Fair Work Ombudsman’s (FWO’s) successful prosecution of a hotel operator and its owner who took adverse action against two employees because of their Chinese race and Malaysian extraction.

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The 76ers Twitter saga and confidentiality in the employment relationship

Nothing but Net

Sports and pop culture website named ‘The Ringer’ published a report about the NBA’s Philadelphia 76ers that sparked controversy worldwide.

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FWC upholds dismissal following obstructive and uncooperative conduct of employee and union rep

I Want It That Way

Disciplinary process involves discussions about dismissal, employers should not unreasonably refuse a request from the employee to have a support person present.

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Employee awarded compensation for dismissal over Facebook Messenger

Respect my authority

Unfair dismissal application lodged by an employee who was summarily dismissed in a Facebook Messenger chat.

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FWC sends strong warning to employees about social media

Say it to my face

Intimidating and threatening behaviour by a supervisor towards a subordinate employee via text message and on social media.

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“Casual” employee entitled to annual leave after 15 years of service

Let’s keep it casual

Issues arise when casual employees are engaged on a long-term basis, have regular and systematic hours and a reasonable expectation of ongoing employment.

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FWC to rehear extension of time application following Full Bench finding that partially unexplained delay not fatal to employee’s case

Extension tension

When responding to an unfair dismissal claim or an adverse action claim involving dismissal, there are a range of jurisdictional objections available to employers depending on the circumstances.

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Brothel Receptionist victim of adverse action

Employers are reminded that they cannot terminate, threaten termination or detrimentally alter a position of an employee on the basis that they chose to exercise a workplace right

In a recent decision of the Federal Circuit Court of Australia, Rosa v Daily Planet Australia Pty Ltd & Anor [2016] FCCA 312, employers are once again reminded that employment of an employee can only be terminated on a lawful basis.

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Undies protest not industrial action – so what is?

Captain Underpants

In McLachlan v Illawarra Coal Holdings Pty Ltd T/A South 32 [2017] FWC 5167, an employer sought to argue that they validly dismissed an employee for his organisation of, and participation in, unprotected industrial action.

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FWO prosecutes hotel owner for underpaying employees because of race

The INNS and outs of adverse action

In its first ever underpayment prosecution relying on the race discrimination provisions of the Fair Work Act 2009 (Cth) (FW Act), the Fair Work Ombudsman has successfully established that two employees of Chinese descent and Malaysian extraction were underpaid because of their race and/or national extraction.

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Can employers legally dismiss an employee for “taking a knee”?

#TakeAKnee

The world has been following the NFL with keen interest these past few weeks after President Trump called on NFL owners to fire players who refused to stand for the US national anthem and flag before a game – raising interesting questions for us sports-loving employment lawyers.

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The causal link between adverse action and workplace rights

“Because I said so …”

The general protections provisions of the Fair Work Act 2009 (Cth) (FW Act) aim to protect employees from adverse action (including dismissal) because of a proscribed reason. Proscribed reasons include the existence of a workplace right and the exercise (or failure to exercise) a workplace right.

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Can a computer be the decision-maker in an adverse action decision?

I’m sorry, Dave. I’m afraid I can’t do that.

As reported this month in HRM Magazine, Futurist Chris Riddell predicts that artificial intelligence will play a key role in business leadership in the next five years. Riddell says, “Artificial Intelligence will start to make decisions and will ‘co-pilot’ the running of business.” But, as the functionality of HRIS increases and technology generally gets smarter, will an employer’s reliance on the recommendations or decisions of a HRIS put the employer at risk?

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