Adverse Action can have a Broad Meaning
When an aircraft engineer made a claim for overtime after an overseas posting, his employer was not inclined to approve it. In a heated exchange by telephone, a senior manager of the company basically said that if the employee didn’t like the arrangements for these overseas jobs then he shouldn’t go on them. The company then suspended overseas postings for all engineers in the employee’s depot.
The employee took the company to the federal magistrate’s court which agreed with the employee that the company had “injured” him in his employment. Specifically, by refusing him the opportunity to participate in further postings, merely because he claimed an entitlement under his enterprise agreement.
The company argued that in fact the employee was not “injured” because the ban lasted only one month and that employee would not have missed out on any opportunities during that time. But on appeal, a full bench of the federal court disagreed with that view. The full court said the fact the threat was made and could be even partially due to the employee claiming an entitlement, was sufficient to engage the “Adverse Action” provisions of the Fair Work Act.
The employer in this case was a very large well-resourced company, and the case demonstrates the far reach of the Adverse Action provisions of the Act. It also demonstrates that even companies with highly qualified industrial, legal and HR professionals available, can fall foul of these laws.