'Carefully document the reason any steps or measures are being taken,' lawyer says
Earlier this month, the University of Melbourne was fined nearly $75,000 by the Federal Court after it took adverse action against two casual academics who complained about their workload.
The academics – both from the Melbourne Graduate School of Education – filed complaints after they were required to work for longer than their "anticipated hours" per subject without getting a higher pay. The university had also threatened not to rehire the academics if they claimed payments for their extra work.
According to Justice Craig Dowling, the casual academics were "entitled to complain or inquire about their ability to perform their work within the 'anticipated hours' contained in their contracts of employment."
"Those complaints should have been free of consequence," Dowling said, according to the Fair Work Ombudsman. "The threat, that if they claimed additional hours they would not receive future work, was a serious contravention of the [Fair Work] Act.”
So how can employers avoid taking adverse action against employees who raise complaints?
Best practices to avoid adverse action
Adverse action at work refers to harmful action a person takes or threatens to take. In most cases, it’s an employer who takes adverse action, but it can also be contractors and employees.
“It can include demotion, termination, disciplinary actions or being overlooked for a promotion that would otherwise have been guaranteed,” Victoria-Jane Otavski, partner at BlackBay Lawyers told HRD Australia. “Anything that is adverse to the interests of the employee and treats that employee differently to what that employee would otherwise have expected to be treated.”
Employees who raise a complaint are exercising their workplace right and Otavski said it is important for employers to act prudently and carefully in managing the internal dispute.
“It's really important for employers to be, first of all, familiar with their own policies and procedures dealing with investigation processes, for instance, or any disciplinary action if that's what the employer is looking to agitate,” she said. “And ensure that they're not deviating from the documented process or plan to be followed.
It’s also important for the employer to be familiar with the general protections area and ensure that it doesn't take steps that might fall foul of the protections enshrined in the Fair Work Act, she said.
“My strong recommendation to employers when faced with situations such as this is to familiarise themselves with the pitfalls and the grey areas that might come into play, but also make sure that they're documenting the process carefully.”
Otavski added that if an employer decides to take action against an employee, that action or step “should be quite clearly tethered and related to that employee's performance or conduct rather than because of that employee’s exercise of the workplace right”.
“To avoid the need to defend an adverse action, the employer should carefully document the reason any steps or measures are being taken,” she said. “And document the reasons, clearly indicating that it is because of a performance or conduct related issue and not because it's the exercise of the workplace right.”
Repercussions for taking adverse action
There are penalties that can apply for employers that have been found to have taken adverse action against their employees.
“The remedies available in the general protection jurisdiction are actually quite broad,” Otavski said. “It's not limited to orders for compensation – that's one the most common type that’s sought by applicants.
“But there are other remedies that can be ordered and that includes injunctive relief. So for instance, the court can issue an injunction requiring an employer to do something or not do a particular act as well. Injunctions are quite a powerful remedy that can be awarded by the courts in instances of adverse action.”
Otavski went on to mention that there is an increasing amount of general protections applications that are being brought to the Fair Work Commission.
“From where I sit, it's quite clear that it's a preferred jurisdiction to the unfair dismissal jurisdiction because it's far more accessible by a wider range of people,” she said. “That's because there isn't a minimum period of employment or a maximum income threshold. And so it's an area to which increasing amounts of people taking advantage of in order to institute claims against employers.
This signals that employers should take “extreme care and caution” in implementing measures designed to reduce the risk of general protections claims being made, Otavski said.
“Unlike the unfair dismissal jurisdiction, there are a wide array of remedies available and… there isn't a cap to the amount of damages or compensation that can be ordered.”
