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If you were terminated due to race, sex, or some other prohibited reason, you may pursue a claim to the Fair Work Commission, alleging adverse action. The unfair dismissal of an employee due to any form of workplace bullying or prejudice can and should be challenged.

The unfair dismissal of an employee due to any form of workplace bullying or prejudice can and should be challenged.

What are adverse action claims?

Adverse Action (or general protections) claims can be brought against employers where it is alleged the employer has treated an employee less favourably because they have (or have tried to) exercise workplace rights.

The definition of workplace rights in the Fair Work Act is fairly wide and includes the following:

  • An entitlement under a workplace law instrument or an order made by an industrial body. This includes the right to be free from sexual harassment at work and the right to be a union representative.
  • The ability to initiate or participate in a process under a workplace law which includes lodging applications with Fair Work Commission, attending court proceedings, taking part in protected industrial action and making a request for flexible working arrangements.
  • The ability to make a complaint to a body that has the authority to deal with a workplace law. This includes making a complaint to the Workplace Ombudsman and lodging a grievance with your employer regarding your terms and conditions.

An adverse action claim can also be brought where an employee has been treated less favourably on discriminatory grounds. Discrimination of any sort is a form of bullying in the workplace and must not be tolerated.

Fair Work Commission

Adverse action claims are commenced in the Fair Work Commission. They are then referred for a compulsory conference, which will aim to negotiate a resolution. If the conference is unsuccessful, proceedings may be commenced in the Federal Circuit Court.

A general protections application which alleges that the less favorable treatment included the termination of employment must be commenced within 21 days of termination. Otherwise, the claim must be commenced within 6 years of the event.

Get in touch with us

Call (08) 9325 0900 to speak with our employment law specialist Timothy Kucera in Western Australia or come and visit us. Our WA office is located in Perth CBD.

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