Let’s get one thing straight. The law does not offer a remedy for every wrongful act by an employer. There are many situations where an employee may feel an employer has treated them unfairly or wrongly. Before legal action is taken, you should consider whether there is a legal option that will actually help. For example, there is no such thing as a legal action for bullying by that name. Action must be taken using one of the available options such as a workers compensation claim or application to the Fair Work Commission (FWC) to stop bullying or by a breach of general protections claim where it is the reason for the bullying that is relevant.
This issue often arises in the context of adverse action under the Fair Work Act 2009 (Cth) (FWAct). There is an increasing tendency for employees to commence adverse action claims in the FWC without considering the law. This can result in disappointment and investment of time and energy for little or no outcome. For there to be a breach of the FWAct general protections provisions, there must be:
- an adverse action; AND
- a particular legislative workplace right which is said to have been breached; AND
- a connection between the adverse action and the workplace right.
These are all technical terms with a legal meaning. An adverse action can include actual or threatened termination, injury, alteration of position, certain types of discrimination or refusal to employ or engage services. Injury does not mean it has to be a physical injury. Alteration of position can cover any deterioration in advantages enjoyed by the employee. Adverse action can occur between employers and employees, prospective employers and prospective employees, principals and contractors. In lay terms, adverse action is any detrimental step taken against a person because of something to do with their workplace rights (or their industrial activities but we will keep it simple in this bulletin). It is often (but not always) useful to think about adverse action as being retaliation for the exercise of a workplace right, such as the right to make a complaint or inquiry in relation to employment.
So what is a workplace right? They are a person’s legislatively specified employment entitlements and the freedom to exercise or not exercise those entitlements. They cover:
- a person’s entitlements, roles and responsibilities under workplace laws and instruments;
- the ability to take part in processes and proceedings under workplace laws and instruments; and
- the ability to make complaints or inquiries in relation to employment.
Starting to get complicated isn’t it? Only certain laws are workplace laws, such as the FW Act, work health and safety legislation and workers’ compensation legislation. If it’s not a directly specified law in the FW Act, it is necessary to consider whether the relevant law regulates the relationship between employers and employees. So adverse action taken because an employee took paid personal leave would be a breach of a workplace right, but not if the employee had used up all their personal leave and was on unpaid leave (which is not a statutory entitlement).
Similarly, not everything will be a complaint or inquiry. There must be more than a whinge or expression of concern. The complaint does not necessarily have to be about the employee themselves and doesn’t always have to be made to the employer. However, there must be a link between the complaint/inquiry and the employment. The reference to an “instrument” means a formal legal document made under or recognised by a workplace law which concerns the employment relationship. For example, industrial awards and enterprise agreements are workplace instruments. But a common law contract of employment is not.
The important thing is that there must be some link between the workplace right and the adverse action. It doesn’t have to be the main, sole or dominant reason. It just needs to be one of those reasons. There does not even have to be an intention to take adverse action because of the workplace right.
Yes, the employer has a reverse onus of proof to disprove the unlawful reason for the adverse action but the case still has to pass the “pub test”. Direct evidence is rare and inferences can be drawn from the circumstances, particularly if the adverse action took place within a short time of the exercise (or non exercise) of the workplace right. But the more remote the connection, the harder the case becomes. It is important to beware the faintly arguable case and not to clutch at straws for the necessary connection. Given that general protections claims can often end up in the federal courts involving a protracted and potentially costly process (both in terms of money and emotional investment) and an uncertain outcome (even if you are successful), it is wise to think twice before lodging a claim.
Similarly, concepts of coercion and making false or misleading representations under the FWAct must relate to a workplace right. They are technical terms with specific meaning. What you think is coercion often will not be under the FWAct.
This bulletin is not intended to provide an exhaustive explanation of a detailed area of the law but to point out that not everything is going to be a breach of the FWAct’s general protections provisions and it is definitely not about the “vibe”. This is a complex area of the law and self represented persons (both employees and employers) should tread carefully because the consequences can be significant. For an example of the difficulties that even lawyers have in articulating legal claims in this area, see Masti v Finohelp Support Pty Ltd [2025] FedCFamC2G 134. Contrast this case with the simplicity of the successful claim in Barlow v St Vincent de Paul Society Queensland [2025] FedCFamC2G 133. A detailed summary of the law can be found in the general protections benchbook published by the FWC. It may seem expensive to obtain advice before commencing a claim but it will pay dividends in the long run.
Please contact us if you would like any further information or help.