Adverse Action/Unlawful Termination
What is Adverse Action/Unlawful termination?
Adverse Action/Unlawful termination occurs where an employee's job is negatively impacted in some way, or they are terminated, because the employee has exercised a workplace right.
It could be for:
- A temporary absence from work due to illness or injury;
- Joining a trade union;
- Participating in trade union activities, such as picketing or striking.
- Not joining a trade union
It also extends to when an employee is sacked because they have been discriminated against by an employer.
This could be based on race, colour, sex, sexual preference, age physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, or religion, among others reasons.
When does it happen?
If an employee believes that this has happened, they can make an application to the Fair Work Commission alleging unlawful termination/adverse action.
An adverse action claim can be made at any time, where an employee has not been terminated.
But where an employee is terminated, they only have 21 days to make an application.
What happens next?
You will be sent a copy of the application and will need to respond.
The proceeding will then be listed for a conciliation to try and resolve it.
If it does not resolve, then a certificate will be issued and the employee must decide if they will pursue it through the Federal Courts.
Can I stop this from happening?
The best way to minimise your risk is to ensure that the reasons for terminating someone, or effecting their employment is not because of who the individual is or what the individual may believe, or even based on your personal views, but how their conduct effects your business and whether their employment should be changed or terminated.
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