Avoiding Adverse Action: Dealing with Employee Enquiries

Since the passage of the Fair Work Act (2009), employers have been obliged to consider the myriad of changes enacted by the legislation, particularly in relation to the National Employment Standards and the expansion of the Unfair Dismissal jurisdiction. However, it is perhaps the new General Protections available in relation to 'adverse action' and 'workplace rights' that ought to demand the most attention from employers. The potential for the exercise of workplace rights to be followed by adverse action and the operation of the reverse onus on employers means that employers need to adapt their HR policies to avoid falling foul of these new provisions.

Under Part 3-1 of the Act, it is unlawful for an employer to subject an employee (or prospective employee) to adverse action on particular grounds. These grounds include personal characteristics of the employee, absence due to illness or injury, coverage by particular industrial instruments, or the exercise of a