What is an adverse action claim?

Under the Fair Work Act 2009 (Cth), a person cannot take adverse action against another person because of an unlawful reason (or reasons including an unlawful reason).

Most often, an adverse action claim is brought by a staff member who alleges the University took adverse action against them in their employment – but claims can also be made by contractors and prospective employees. A wide array of things can amount to adverse action – for example, knocking back a promotion application, commencing a disciplinary process, or making a position redundant.

The staff member is required to prove that they have been treated adversely and to identify the existence of a potentially unlawful reason - such as the staff member's exercise of a workplace right, participation in industrial activities, or a discriminatory reason based on a protected attribute (eg race, disability, family responsibilities).

Once the staff member has established adverse action, the existence of a potentially unlawful reason and alleged the action was taken because of the unlawful reason, it is up to the University to establish the adverse action was not taken because of the unlawful reason.

Staff members have a workplace right to make a complaint or inquiry in relation to their employment. This is a broad concept and, in our experience, is frequently alleged as an unlawful reason – it is the unlawful reason alleged in each of the cases below.

Why is it popular?

Adverse action claims are on the rise. They are a claim of choice (instead of unfair dismissal or discrimination) for a number of reasons:

  • No 'minimum employment period' - unlike the six month requirement in unfair dismissal claims;
  • No requirement that there be an employment relationship or dismissal – there are exceptions to this for certain types of claims;
  • The reverse onus of proof, which places a burden on the employer to prove that any adverse action did not occur because of the unlawful reason;
  • No cap on compensation;
  • Statutory penalties may be ordered;
  • Injunctions are available and can be used to stop a disciplinary process or termination;
  • They are available to more people – for example, a staff member can make an adverse action claim regardless of how much they earn or whether they are covered by an industrial instrument (unlike an unfair dismissal claim).

University cases: what we've learnt

NTEU v RMIT [2013] FCA 45

Facts: A Professor and the National Tertiary Education Union brought an adverse action claim, in which they alleged that the Professor's complaints about bullying by her supervisor were the true reason behind her position being made redundant in a restructuring process. The Vice Chancellor of the University was the ultimate decision-maker, but the supervisor played an initial role in the decision-making process.

Decision: Application successful – the Court ordered reinstatement. The redundancy was, at least in part, motivated by the view that the Professor was a 'troublesome employee' because she had raised complaints about workplace issues.

Lessons:

  • The decision should be supported by objective information in support of the lawful reason - eg medical reports, show cause letters, investigation findings, or performance data.
  • All individuals involved in a decision-making process should give evidence as to the reason/s for the adverse action. In order to discharge the reverse onus of proof, a decision-maker will need to give direct evidence that the reasons for the action did not include an unlawful reason. It's often a good idea to explain the adverse action regime to the decision maker, so they are aware of the matters they can't take into account in making a decision, and can give evidence about what they didn't take into account – we've successfully used this in a number of adverse action claims.

Heathcote v University of Sydney [2014] FCCA 613

Facts: A Professor claimed that the true reason for his redundancy was a complaint about bullying and harassment he had made in 2004. He also pointed to ideological differences he had with senior academics on the selection panel. The University had adopted redundancy selection criteria related to research output.

Decision: Application dismissed. The evidence demonstrated a sound procedure of checks and balances, with no hidden agenda or bias.

Lessons:

  • In a redundancy situation, ensure well documented processes, suitable selection criteria, and sound evidence in support of the application of the criteria. An appropriately convened panel process will strengthen the integrity of a decision.
  • The conduct of managers is often criticised in adverse action claims – make sure managers at the University are aware of the adverse action regime (and bullying, discrimination and harassment) and know to take care in their decision-making and interactions with staff members.

Borg v Victoria University [2015] FCA 252

Facts: A sessional lecturer made numerous complaints about bullying, harassment, discrimination and victimisation, through internal departments and external organisations. The complaints were found to lack substance. The University elected not to renew the lecturer's contract.

Decision: Application dismissed. The decision not to renew the contract was in no way influenced by the complaints. There was a sound basis for selecting an alternative lecturer.

Lessons:

  • A staff member should be provided with the reason for a decision, either through documentation or formal meetings. This avoids suspicion as to the motives behind a decision – we see that when people aren't given reasons, they often 'fill the void' with their own perception that they have been treated unlawfully.
  • Establish a 'paper trail' in support of defensible reasons.