Four prohibited reasons your employer cannot take adverse action against you for
The general protections provisions in the Fair Work Act 2009 (Cth) protect the rights of Australian employees at work. These laws prohibit your employer from taking adverse action against you, such as dismissing you from your employment, for certain reasons.
Employees who experience harmful or adverse action for a prohibited reason can make a general protections claim to the Fair Work Commission by lodging a form F8 or F8C.
We break down four common prohibited reasons below.
Protected features and attributes
Employees and potential employees are protected from workplace discrimination because of their features or attributes, such as race, gender identity, age, sexual orientation, disability or religion.
The Fair Work Commission may consider your employer to be in breach of general protections laws if they dismiss you, do not hire you, treat you differently, withhold access to legal entitlements, negatively change your job or threaten adverse action against you because of your protected features or attributes.
Employees can also bring discrimination claims to the Australian Human Rights Commission or other state or territory anti-discrimination agencies, such as the Victorian Equal Opportunity and Human Rights Commission.
Exercising a workplace right
The general protections provisions in the Fair Work Act state that employers cannot take adverse action against an employee for having or exercising a workplace right, including the right to ask to make a complaint or inquiry about their employment. For example, if you need to take personal/ carer leave, complain about a supervisor, or inquire about underpayment of wages.
Employees are also protected from adverse action from their employer because a third person has exercised, or proposed to exercise, a workplace right on behalf of the employee.
Participation in industrial activities
The law protects employees’ right to participate or choose not to participate in industrial activities or associations, including unions.
If your employer takes adverse action against you because you are/ are not involved in industrial activities, or if they coerce or induce you to become a member of an industrial association (or stop being a member), you can make a general protections application.
Industrial activities include:
- being a member of or establishing a union or industrial association
- organising, promoting or encouraging participation in lawful activities of a union or employer association
- complying with a legal request made by a union or employer association
- representing the views, claims or interests of a union or employer association.
Taking long periods of sick leave
An employee absent from work for an extended period because of sickness or injury may be protected from dismissal if they are away for less than three consecutive months or less than three months total in a 12 month period and are still using paid sick leave. You must be able to produce evidence of your illness or injury if requested by your employer or per your employment agreement.
Employees who use paid sick leave for the duration of their time off cannot be dismissed by their employer because of their absence, regardless of how long they are on leave.
Even after an employee has been on sick leave for more than three months or used all of their paid sick leave, they may still be protected from dismissal for other reasons, such as additional protections under state and territory workers compensation laws.
Written by Trent Hancock
Disclaimer: This article should not be construed as legal advice and is not intended as such. If readers wish to obtain advice about anything contained in this article, they should speak with a lawyer and discuss their individual circumstances.