Managing employee performance: the new adverse action risk

Key Points: Employers should ensure that disciplinary action decisions are supported by a clear paper trail.

Once the realm of federal and state anti-discrimination legislation, the Fair Work Act 2009's adverse action provisions have expanded the avenues available to employees who feel they have been treated less favourably than others because of an unlawful reason by their employer. With disgruntled employees generally a result of disciplinary action, the number of adverse action cases is growing.

A recap on adverse action

Under the Fair Work Act 2009, an employer takes adverse action against an employee if it:

dismisses the employee; injures the employee in his/her employment; prejudicially alters the employee's position; or discriminates between the employee and other employees. Significantly, a reverse onus test applies in adverse action claims. This means that where an employee claims the employer took adverse action against the employee for an unlawful reason, the court must presume this to be the case unless the employer can prove otherwise.

The general protections provisions provide that in addition to it being unlawful for an employer to take adverse action against an employee who has a workplace right, an employer must also not take adverse action against an employee (or prospective employee) because of the employee's:

race; colour; sex; sexual preference; age; physical or mental disability; marital status; family or carer's responsibilities; pregnancy; religion; political opinion; national extraction or social origin. This protection doesn't apply to action...