AVOIDING ADVERSE ACTION CLAIMS

It is important for employers to investigate employee complaints appropriately. Re-assigning, dismissing or standing down an employee after they have made a complaint could result in a Fair Work claim for Adverse Action. Avoiding adverse action claims can be easier than you may think.

 

WHAT IS ADVERSE ACTION?

Adverse action is an action that is considered unlawful if it is action taken for discriminatory reasons. Adverse action taken by an employer can include doing, threatening or organising any of the following:

  • Dismissing an employee for making a complaint;
  • Treating an employee differently or disadvantaging them for exercising a workplace right
  • Injuring an employee while employed;
  • Altering an employee’s position to their detriment;
  • Discriminating against an employee;
  • Refusing to employ a prospective employee;
  • Discriminating against a prospective employee on the terms and conditions in the offer of employment.

 

HOW TO AVOID ADVERSE ACTION CLAIMS

  1. Be open and clear to your employees: It is important to be open and clear about your reasoning when taking action against your employees. Ensure the reason is related to an employee’s behaviour or conduct that is not in line with the organisation’s code of conduct. Be sure the employee understands and that you have sufficient evidence to prove the underperformance or misconduct.
  2. Keep documentation of your actions and reasoning: Be sure to keep clear documentation of the actions taken against the employee and your reasoning behind them. This way, if a claim is made, you are able to easily prove what action was taken against an employee and why the action was taken.
  3. Have clear policies and procedures: Organisations should have clear and fair policies and procedures in place and all employees should be aware of them. These should include how misconduct or underperformance are handled and should be followed consistently to avoid adverse action claims.
  4. Follow the rules of procedural fairness: When an employee makes a complaint, ensure the employee is treated fairly throughout the grievance investigation process and afterward. What applies to the complainant should also apply to the person against whom the complaint is made.