Since the enactment of the ‘adverse action’ provisions under the Fair Work Act 2009 (Cth) (FW Act) some 10 years ago, it is far more difficult for an employer to lawfully dismiss an executive or senior manager. Why? Because adverse action claims: are relatively easy to bring; can include compensation for hurt, distress and humiliation … Continue reading
The U.S. Equal Employment Opportunity Commission (EEOC) has issued its final “Enforcement Guidance on Retaliation and Related Issues” following a six-month public comment period. The guidance replaces the EEOC’s 1988 Compliance Manual section on retaliation. Workplace retaliation claims have been on the rise in recent years and have been the focus of several opinions of the … Continue reading
On March 1, 2016, the EEOC filed two cases with one clear goal: to expand the meaning of “sex” under Title VII. In EEOC v. Scott Medical Health Center, P.C., Case No. 2:16-cv-00225-CB (W.D. Pa.), the agency alleges that the defendant harassed an openly gay male employee because of his sexual orientation, thereby committing unlawful … Continue reading
When a collective agreement is negotiated, compromises are often made. Benefits are given to some but not all employees. However, this can risk being viewed as discriminatory – depending on who receives the new benefits and who does not. In a recent case before the Nova Scotia Court of Appeal, IAFF, Local 268 v Adekayode, it was examined … Continue reading
The Federal Court of Australia has penalised a university for unlawfully threatening adverse action when it prepared secret plans to move senior teaching staff to a new employing entity. Adverse action The Fair Work Act 2009 (Cth) makes it unlawful for an employer to take adverse action against an employee because of his/her possession or … Continue reading
In a majority decision, the Full Court of the Federal Court of Australia has rejected a claim of unlawful adverse action brought by an employee who was summarily dismissed for improperly claiming sick leave – notwithstanding that, in fact, the sick leave was justified. The decision emphasises the centrality of the employer’s subjective reason for … Continue reading
Numerous federal, state, and local laws in the United States prohibit employers from making employment decisions based on an employee’s or job applicant’s sex and thus protecting employees from being discriminated against based on their “sex”. Title VII of the Civil Rights Act of 1964 is the principle federal law which prohibits discrimination based on … Continue reading
In previous posts we have examined the “workplace rights” limb of the adverse action jurisdiction in the Fair Work Act 2009 (Cth) (the Act) – specifically the protection given in relation complaints. The issue has been considered again in a recent decision of the Federal Circuit Court.… Continue reading
The Federal Court of Australia has held that the decision of an employer to subcontract a particular type of work, rather than have it performed by an employee, did not constitute unlawful adverse action. The decision applies the relatively restrictive approach to the question of causality adopted in two earlier decisions of the High Court … Continue reading
The Federal Circuit Court has ruled a senior executive who was investigated, following anonymous allegations of misconduct was not the victim of unlawful adverse action, finding that among other things, the investigation itself was not “adverse” and that other action taken by the employer was not taken for a prohibited reason as alleged. What does … Continue reading
The Federal Court has ruled that a union organiser, who was redeployed to other duties (and ultimately dismissed) because of his involvement in a Socialist political party, was the victim of unlawful adverse action. The union’s concern that he might “undermine or infiltrate” the (trade) union movement did not justify the action. Facts The Applicant … Continue reading
The statutory protection against adverse action taken because the employee made a complaint about the employment should not be limited to situations where the employee genuinely believes in the merit of the complaint, the Full Federal Court has said in a recent decision – but without finally disposing of this controversy.… Continue reading
The statutory protection given employees against adverse action on the basis of political opinion is not restricted to matters of party political outlook but extends to issues of philosophical difference, the Federal Circuit Court has ruled. Adverse action The Fair Work Act 2009 (Cth) (the Act) makes it unlawful for an employer to take “adverse … Continue reading