ARTICLE · 19 SEPTEMBER 2012

Key High Court Ruling Regarding Adverse Action Claims

Truman Hoyle

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By clarifying what is "unlawful adverse action", the High Court has narrowed the scope of the burden on the employer.

AustraliaEmployment and HR

Fiona Inverarity

In handing down its judgment last week in Board of Bendigo Regional Institute of Technical and Further Education v Barclay, the High Court has provided important clarification for determining what is "unlawful adverse action". The High Court narrowed the scope of the burden on the employer.

Background

Under the Fair Work Act (Act), it is unlawful for an employer to take adverse action against an employee (such as termination of employment or altering the position of the employee to the employee's detriment) if it does so for a prohibited reason specified in the Act. These prohibited reasons include the employee either being a union officer or engaging in industrial activity.

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