The essential elements of a Fair Work adverse action case

The essential elements of a Fair Work adverse action case explained.

Here is an extract of a recent Federal Court case which explains the essential elements of an adverse action case arising from the workplace.

“It is trite that three matters must be established before a person will be held to have engaged in contravening conduct.

First, the person has taken “adverse action against another person”. This is not in dispute.  The expression is defined in a table contained in s 342(1) of the FWA which identifies, relevantly for present purposes, that the relevant person who must take the adverse action is “an employer”, and that the person against whom the employer takes the adverse action must be “an employee”; and the employer takes “adverse action” if the employer, among other things, “dismisses the employee”.

The second matter that must be established is that the employee against whom the employer has taken adverse action has, among other things, a “workplace right”, or has exercised or not exercised such a right, or proposes to or proposes not to, exercise such a right.  Section 341(1) provides a person has a “workplace right” if, among other things, the person “is entitled to the benefit of” a “workplace law”.  The expression “workplace law” is defined in s 12 of the FWA to mean, among other things, “any . . . law of the Commonwealth, a State or a Territory that regulates the relationships between employers and employees (including by dealing with occupational health and safety matters)”.  A person also has a “workplace right” if, among other things, the person, being an employee, “is able to make a complaint…in relation to his or her employment”.  I will return to the concept of a ‘complaint’ below.

The third matter, of signal importance here, is that the employer took the adverse action for a proscribed reason, or for reasons that included a proscribed reason: (see [85] above for the discussion of s 360). Further, where the particular reason is one of a number of reasons for which the adverse action is taken, the particular reason must be a “substantial and operative factor” as to constitute a “reason”, potentially amongst many reasons”, or must be an “operative or immediate reason for the action”: see Barclay at 542 [127] per Gummow and Hayne JJ; 544 [140] per Heydon J. Importantly, for present purposes, the need to there to be a connexion between the reason or reasons as found and the adverse action arises from the presence of the word “because” in s 340(1) of the FWA which prohibits a person from taking adverse action “because” a person has a “workplace right”, or because the person has, has not, proposes to exercise, or proposes not to exercise, such a right.”

Leahey v CSG Business Solutions (Aus) Pty Ltd [2017] FCA 1098 (18 September 2017) (Lee J)