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Tips for defending adverse action claims

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HC Online | 12 Jan 2016, 11:59 AM Agree 0
In adverse action cases, with the onus of proof on the employer, the costs of losing such a case can be very high.
  • | 12 Jan 2016, 01:48 PM Agree 0
    I find it interesting that "responding to allegations" could be interpreted as adverse action - isn't that just procedural fairness? Are you able to cite some cases please where this has been found to be the case? If it is (at present) still conjecture, I personally think it is drawing a long bow.
  • WannaBeLawyer | 22 Aug 2016, 04:57 PM Agree 0
    "requiring an employee to respond to allegations". The allegation (what ever it might be, and every case is different) could be found to be an adverse action because the employee had a workplace right, proposed to or proposed not to exercise a workplace right, or had or had not exercised a workplace right. If the argument of the employee is established and has evidence to contradict or bring into doubt the evidence of the employer, the employer will find it difficult to successfully discharge that reverse onus of proof. Generally, if the employer's evidence or testimony of the decision maker is reliable, the employer will successfully discharge their burden of proof. Tough bit for the employer is to PROVE that the allegation of (whatever is alleged) was the ONLY reason for the employee's allegation/discipline/dismissal etc...pretty difficult to do, because most of the time, employers have all the evidence in the world to support their reason for allegation/discipline/dismissal, but where they fall down is that they have difficulty proving that it was the only reason.
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