Adverse Action Not Substantiated - What is adverse action, and how does it affect you?

Adverse action is action that is “unlawful if it is taken for particular reasons”. The Fair Work Act 2009 lists numerous actions that are adverse actions, including (but not limited to), threatening to or organising any of the following:

  • An employer dismissing an employee, injuring them in their employment, altering their position to their detriment, or discriminating between them and other employees.
  • An employer refusing to employ a prospective employee or discriminating against them in the terms and conditions the employer offers.
  • An employee or independent contractor taking industrial action against their employer or principal.

In a recent case, J v Entram Pty Ltd [2015], a judge found that there was no adverse action taken against an employee that had been dismissed from the company. The employee was summarily dismissed after the employer claimed that they had made ‘negative comments about the company and its directors’ during a business deal, leading to the major business deal falling through. The employee said that he had been making enquiries about future employment in light of the deal, and was ignored before he was dismissed. He claimed to have been exercising a workplace right in discussing his employment.

The judge in this case ruled that there had not been adverse action in regards to the evidence that had been presented, therefore there was no substantiated adverse action taken against the employee by the employer.

If you believe an employee has acted out of turn, or in an inappropriate manner, you must handle the issue in relation to the Fair Work Act 2009. By keeping to the guidelines outlined in the Act, an employer is able to ensure fair practices for both the employee and the organisation, and make sure that they are successfully running a respectful company.

For more information on adverse action and how to ensure you comply with the Fair Work Act, contact us on (08) 9316 9896 or visit