28 May 2009

Discrimination and victimisation soon to be "adverse action"

by Christa Lenard

New adverse action provisions give rise to the potential for alternative claims beyond those traditionally found under the anti-discrimination jurisdiction.

From 1 July 2009, national system employees and employers will have the ability to bring adverse action claims under the Fair Work Act 2009, including in respect of claims of discrimination and victimisation in employment. While it has always been unlawful to discriminate in employment under the Workplace Relations Act 1996, traditionally such claims have tended to be brought under the relevant State or Federal anti-discrimination legislation where specific processes and remedies, underpinned by separate tribunals (or commissions) exist.

The extent to which employees will make use of the new expanded "adverse action rights" and bring claims under the Act instead of the relevant State anti-discrimination Tribunal remains to be seen. Employers however, need to be aware of the concept of "workplace rights" and what can constitute adverse action under the Act.

Under the new general protection provisions in the Act, employees and employers can bring an "adverse action" claim where a workplace right has been breached or is threatened to be breached. A "workplace right" is defined in the Act to encompass:

  • an entitlement, benefit, or responsibility under a workplace law, workplace instrument or an order made by an industrial body (such as the Australian Industrial Relations Commission or Fair Work Australia (FWA));
  • initiation or participation in, a process or proceedings under a workplace law or workplace instrument (including, but not limited to, a conference before FWA, court proceedings, protected industrial action, appointing a bargaining agent, making a request for flexible working arrangements or dispute settlement); or
  • making a complaint or inquiry to a body having capacity to seek compliance with a workplace law or workplace instrument. This is broad in its application and extends to the ability to make a complaint to the person's employer, FWA, or a union.

The circumstances in which an adverse action can be said to be taken against another person are very broad, and can include dismissing an employee, injuring or altering the position of an employee to his/her prejudice, or discriminating between the employee and other employees.

The anti-discrimination claim

A recent case in the Queensland jurisdiction can illustrate how a set of circumstances ordinarily giving rise to a victimisation claim under anti-discrimination laws, might apply as an alternative adverse action claim for a breach of a "workplace right" under the new legislation.

In the case of VN v MP, KP, K t/as P, and DS [2009] QADT 1 (13 January 2009), the complainant made a complaint to the Queensland Anti-Discrimination Tribunal after her employment was terminated because of a sexual harassment complaint made against a floor coverings company and its directors.

The complainant, a female salesperson, had complained that she had been sexually harassed by each of the two directors of the company (a married male and female) and by a male floor covering installer while employed by the company.

The male director of the company terminated the salesperson in November 2004, believing that he had a right to do so because she had made a sexual harassment claim against him.

In addition to the claim for sexual harassment, the complainant alleged victimisation for a number of reasons including the termination of her employment. She further alleged that the company was vicariously liable as the acts of sexual harassment and victimisation had occurred at work.

The complainant claimed damages and compensation arguing that she had suffered emotional trauma, weight loss, difficulties in personal relationships and insomnia as a result of the harassment. She also claimed lost wages, and money for use of the company car which she claimed formed part of her remuneration package.

Having weighed up the evidence, the Tribunal ultimately held that the complainant had not been sexually harassed by any of the respondents, and dismissed that aspect of the complaint. Further, all of the complainant's allegations of victimisation, other than for the termination of her employment for bringing the sexual harassment claim, were dismissed.

However, the Tribunal found that the victimisation charge was made out against the male director, who was found to have terminated the complainant's employment because she had made allegations of sexual harassment against him.

In relation to victimisation, the Tribunal stated:

"it is not necessary for the complainant to establish that the matter was the sole reason for the detrimental conduct, rather, the complainant must establish that the matters were a substantial reason for the detrimental conduct".

In this case, although the Tribunal acknowledged that there had previously been warnings given to the complainant regarding her dress, excessive use of work telephone, inappropriate language and divulging confidential information, the primary reason for the termination of the complainant's employment was her allegation of sexual harassment. Termination of employment under the Queensland Anti-Discrimination Act clearly satisfied the "detriment" requirement of the legislation, as the complainant suffered loss as a result of the loss of her job.

The company (found to be vicariously liable) and the male director were ordered to pay the complainant a total of $200 in damages for victimisation, while both parties were ordered to pay $1,040.00 in lost wages.

The alternative claim

If the facts of this case were to be presented under the auspices of the Act, notwithstanding the fact that the allegations of sexual harassment may have ultimately be found to have been erroneous, it is conceivable that the complainant would have grounds to commence an adverse action claim under the Act for the detriment she suffered by making the sexual harassment complaint.

The circumstances of the case give rise to a relevant "workplace right" (by reference to the an entitlement or obligation under anti-discrimination law) and a detriment has taken place (that is, termination of the employment).

Accepting an alternative claim available, such a complainant would have access to remedies that are broader in scope than that traditionally available under anti-discrimination laws.

Under the new laws, where an adverse action claim is made, it will be generally be dealt with at first instance by a Fair Work conference. If the conference does not resolve the dispute then the employee may proceed to run a case either in the Federal Magistrates Court or Federal Court. It is important to note that an application must be made within 60 days of the dismissal, although FWA will have discretion to accept an application lodged out of time.

Yet, it is not only in instances of termination of employment that an adverse action can be made. An employee can also seek an interim injunction from the court to restrain an employer from dismissing the employee, either where a threat is made, or it appears likely that termination of employment is imminent.

Where termination of employment has resulted, the court may make any orders it considers appropriate to remedy the situation. This means, that in addition to orders for compensation (the traditional remedy for anti-discrimination tribunals), a court may order injunctions and reinstatement orders.


It is important that employers familiarise themselves with these new adverse action provisions and the potential for alternative claims beyond those traditionally found under the anti-discrimination jurisdiction. Organisations should review their policies and procedures to ensure that they can adequately identify issues giving rise to adverse action. In the case of those with responsibilities for grievance handling (such as human resources and contact officers) retraining may need to occur so that areas of risk can be identified and appropriately managed.

Thanks to Connie Haylar for her help in writing this article.

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Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this communication. Persons listed may not be admitted in all States and Territories.