The Real Reason for taking Adverse Action
Two recent cases have further clarified the law on adverse action claims, and both cases have placed a heavy emphasis on the actual reason(s) of the decision maker for taking the action that was taken.
What is the law relating to Adverse Action claims?
Under the law, a person must not take adverse action against another person:
(a) because the other person:
- has a workplace right; or
- has, or has not, exercised a workplace right; or
- proposes or proposes not to, or has at any time proposed or proposed not to, exercise a workplace right; or
(b) to prevent the exercise of a workplace right by the other person.
When does a person have a Workplace Right?
A person has a workplace right if the person is entitled to the benefit of, or has a role or responsibility under, a workplace law, workplace instrument or order made by an industrial body; or is able to initiate, or participate in, a process or proceedings under a workplace law or workplace instrument; or is able to make a complaint or inquiry to a person or body having the capacity under a workplace law to seek compliance with that law or a workplace instrument; or if the person is an employee - in relation to his or her employment.
An example of a workplace right would be if a full-time employee has accrued personal leave days, and he or she wishes to claim payment for a day that was taken as personal leave.
What is Adverse Action?
Adverse action by an employer against an employee includes dismissing the employee, altering the position of the employee to the employee's detriment, and discrimination against the employee.
Examples of adverse action may include demoting an employee, or not paying an employee a bonus that would normally be paid.
What is the law?
It is important to point out that it is not unlawful for an employer to merely take adverse action against an employee. The law states that an employer cannot take adverse action against an employee BECAUSE OF a workplace right that the employee has - in other words, the adverse action taken by the employer must be directly connected to the workplace right of the employee.
Furthermore, the onus of proof in showing that adverse action was not taken for a prohibited reason falls upon the person who took the action, which is almost always the employer. Even if the prohibited reason was one of a number of reasons for taking the action, then it will still be advserse action if it was an operative factor.
If an employer can demonstrate that the adverse action was taken for any reason OTHER THAN a reason which is not directly connected to the employee's workplace right, then an employer will most likely succeed in defending an adverse action claim.
Case 1 - Employee dismissed for taking sick leave
In this case, an employer dismissed an employee who the employer mistakenly thought had taken sick leave when he was not sick. The employer had previously refused the employee's application for two days of annual leave, and the employee had responded by saying "Fine, I'm going to be sick anyway". The employee then took those same two days as sick leave.
The employer dismissed the employee, believing that he had not been sick and had dishonestly taken the sick leave. The employee was in fact genuinely sick on those two days.
The Court considered the actual reason(s) of the decision maker, who gave evidence that if they had believed the sick leave was genuine, then they would not have taken any action. This evidence was sufficient to discharge the employer's onus of proof, even though their belief regarding the genuineness of the sick leave was wrong. In this case, the employer was successful in defending the employee's adverse action claim.
It should be noted that if the employee had filed an unfair dismissal claim, rather than an adverse action claim, they would probably have succeeded.
Case 2 - Employee moved off weekend roster due to large number of sick days taken
In this case, the employee had taken a large number of sick days over a three year period. This uncertainty in attendance at work had a negative effect on the business, as he was the only maintenance fitter on the shift and work could not commence without him.
The employer then decided to change the employee's roster so that the employee no longer worked on weekend shifts, which resulted in a reduction in the employee's pay because weekend penalty rates were no longer payable to the employee.
The decision maker gave evidence that he was motivated by the employee's unreliable attendance and the need to have employees whose attendance was reliable and predictable, and that he was not motivated by the fact that the employee had exercised his right to take sick leave.
The Court asked whether the employee had been moved off the weekend roster BECAUSE he exercised his right to take sick leave, OR because of the EFFECT that the employee's exercision of taking sick leave had on the rest of the business.
It was held that because the decision maker took the action because of the effect that the employee's sick leave had on the business, and not on the fact that the employee actually took sick leave, the employer was able to successfully defend the employee's adverse action claim.
Summary
If an employer takes advserse action against an employee, not because of the employee's workplace right, but because of the effect, nature or impact of the employee's workplace right, then it is likely that the employer will be able to successfully defend an adverse action claim.
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