Adverse action in fair work law; how wide is the concept?

There are conflicting authorities in the Federal Court and the Federal Circuit Court of Australia about the degree to which an employee is negatively affected by action by an employer before it can qualify as adverse action under the general protections of the Fair Work Act. It is uncontroversial that a dismissal is adverse action, but what about a suspension on full pay, or a stand down on full pay, or the commencement of disciplinary action on full pay? What follows is a Federal Circuit Court judge’s view on the issue.

“Despite the apparent conflict in the authorities on this point (see Police Federation of Australia v Nixon (2008) 168 FCR 340 on the one hand and Jones v Queensland Tertiary Admissions Centre Ltd (No 2) [2010] FCA 399 on the other) I am prepared to assume that the commencement of the disciplinary process in this case was adverse action for the purposes of the Act. In saying that, I make no finding that the process so commenced was not bona fide or was not commenced in good faith. I think that it was.

The suspension of Mr Martens from duty, but on full pay, was not adverse action taken by the first respondent against Mr Martens.  As Murphy J discussed in Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Visy Packaging Pty Ltd (No 3) [2013] FCA 525 at [114]:

In my view the removal of an employee from their employment against his or her will, even temporarily, will usually be adverse to their interests. To say otherwise would be to deny the benefit one gains from the successful pursuit of activity in a field of expertise. The observation that active employment is a source of more than simply financial benefit is neither new, nor should it be considered controversial: see Squires v Flight Stewards Association of Australia (1982) 2 IR 155 at 164 per Ellicott J; Blackadder v Ramsey Butchering Services Pty Ltd (2005) 221 CLR 539 at [32] per Kirby J, and Callinan and Heydon JJ at [80]; Quinn v Overland [2010] FCA 799 at [101]-[103] per Bromberg J.



Martens v Indigenous Land Corp (2017) FCCA 896 per Jarrett J delivered 4 May 2017