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  • A key issue in adverse action claims is the reason for the decision-maker taking action.
  • Adverse action will not automatically be for a prohibited reason simply because it is taken in connection with the exercise of a workplace right or participation in industrial action or activities.
  • It is necessary to consider the distinction between the exercise of a workplace right and the effect of the exercise of that right.

Consider the following situations:

  • An employee, who was a union sub-branch president, sent an email to fellow employees encouraging them to not agree to create fraudulent documentation to help the employer pass an accreditation audit. The employer suspended the employee on full pay and directed the employee to show cause why they should not be subject to disciplinary action (Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32 (Barclay)).
  • An employer dismissed an employee who is on a lawful picket line holding a sign which says:

‘No principles
No guts’.

(Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2014] HCA 41 (BHP Coal)).

  • An employer dismissed an employee who the employer mistakenly thought had taken sick leave when he wasn’t sick (Construction, Forestry, Mining and Energy Union v Anglo Coal (Dawson Services) Pty Ltd [2015] FCAFC 157 (Anglo Coal)).
  • An employer moved an employee off a weekend roster because the employee had taken sick leave on a number of occasions which (except for one occasion) were within his enterprise agreement entitlements (Construction Forestry Mining and Energy Union v Endeavour Coal Pty Ltd [2015] FCAFC 76 (Endeavour Coal)).

In each of these instances the employee (or their union) brought an ‘adverse action claim’ under the general protections provisions of the Fair Work Act 2009 (Cth) (the Act). These provisions prohibit, amongst things, an employer from taking adverse action against an employee because of the employee engaging in industrial activity or exercising a workplace right.

Each of these cases has had to consider the issue of whether the workplace right or industrial activity was a motivating factor in the employer taking the particular adverse action against the employee. Should the employees have been successful in the above matters?

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