Tag archives: adverse action

Why sacking senior executives is a risky business

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 (and damages are uncapped);
  • can be difficult to successfully defend (due largely to a reverse onus of proof); and
  • expose the employer to considerable financial, legal and reputational risks – even when there was a good reason to remove the executive and the
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“Promising practices” encouraged by EEOC to prevent retaliation

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 U.S. Supreme Court in the past two decades. In fact, charges of retaliation exceeded race discrimination claims in 2009 and comprised nearly 45 percent of all charges received by the EEOC in 2015.

In addition to defining retaliation and providing over thirty … Continue Reading

EEOC continues its efforts to incorporate sexual orientation and gender identity into Title VII protections

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 sex discrimination under Title VII.  The Complaint suggests the employee’s manager repeatedly directed homophobic slurs at the employee, conduct the agency characterizes as “motivated by [the employee’s] sex (male), in that sexual orientation discrimination necessarily entails treating an employee less favorably because of his … Continue Reading

Collective Agreements vs. Charter Rights in Nova Scotia

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 whether or not it was discriminatory for a collective agreement to top up federal EI benefits for adoptive parents’ parental leave but not for birth parents.

In Adekayode, the Human Rights Board had initially found that a policy of topping … Continue Reading

University fined for adverse action over secret plan to transfer teaching staff

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 exercise of a workplace right – which includes entitlements under an enterprise agreement applying to the employee.

Adverse action includes altering the position of an employee to his/her prejudice or injuring the employee in his/her employment.  Threatening to undertake such an action is also “adverse … Continue Reading

Dismissal on erroneous basis is not unlawful adverse action

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 the action as the basis for determining liability.… Continue Reading

The prohibition on employment discrimination based on “sex” takes many forms

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 sex in the workplace.  There are also many state and local laws which prohibit discrimination based on sex which may offer broader protection that that afforded by Title VII of the Civil Rights Act of 1964.

 What is discrimination based on sex?

Discrimination based on … Continue Reading

Employer’s Decision to Subcontract Work is not Unlawful Adverse Action

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 of Australia (the Barclay case and BHP case).… Continue Reading

Investigation did not constitute adverse action

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 this mean for employers?

Any disciplinary action which the employer proposes to take against the employee needs to be based on strong, direct evidence of relevant misconduct, which needs to come from the decision-maker in order to displace the assumption that the adverse action was … Continue Reading

Adverse action due to political opinion

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.


The Applicant was employed by the union (CFMEU) in 2013 as an organiser on a 6 month contract, in the course of which he was required to work in alliance with another union (AWU).

The Applicant had been a member of the Socialist … Continue Reading

Broad approach taken to “political opinion” in adverse action claim

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 action” against an employee because of his/her “political opinion”. Adverse action will include dismissal from employment, but also a wide range of other conduct which results in the employee suffering disadvantage.

In any claim brought by an employee for adverse action, the employer bears … Continue Reading