While the number of successful adverse action claims shouldn't be overstated and many have failed at the first hurdle, important lessons can be drawn from the existing case law, according to Sydney University's Professor Joellen Riley.

Professor Riley outlined some recent court and tribunal decisions on the Fair Work Act's provisions to a Workforce conference in Sydney, saying they contained five key lessons.

These were:

1. The "reason" for the adverse action is the "objectively assessed, causative reason, not the subjective motivation of the decision-maker" (Barclay v Board of Bendigo Regional Institute of Technical and Further Education - see Related Article). "At least this is the view that Justices Gray and Bromberg take in their majority view," she said. The decision followed an adverse action claim by a senior Bendigo TAFE school teacher - also an AEU delegate - who'd been disciplined over an email he sent union members at the workplace, which the TAFE regarded as damaging to its reputation. Professor Riley said the contentious issue was the meaning of "because " in s346 of the Fair Work Act. The employer argued its motivation was to discipline appropriately the employee for his breach of loyalty, while the employee maintained that carrying out his obligations as a union delegate was behind the alleged loyalty breach - hence the adverse action was taken "because of" his union activity. The High Court has recently granted special leave for Bendigo TAFE to challenge the Federal Court full court majority ruling (see Related Article), and Professor Riley said she had expected beforehand that the employer would succeed - not because it was a "bad decision", but because it was really a statutory interpretation question and the current High Court "really loves" those.
2. The "workplace rights" that are protected don't have to be rights arising under the Fair Work Act itself, they include rights from other legislation regulating the employment relationship (Stephens v Australian Postal Corporation - see Related Article). Professor Riley continued that this didn't, however, extend to common law contracts - as the Barnett v Territory Insurance Office decision made clear (see Related Article). "A breach of your employment contract will not ground an adverse action claim," she said. In the Australia Post case, the Federal Magistrates Court reinstated an employee after finding the corporation took adverse action when it sacked him because of his right to access workers' compensation. Professor Riley noted that his workplace right arose under the Safety Rehabilitation and Compensation Act .
3. Compensation may include a (modest) sum for hurt and humiliation (ALAEA v International Aviations Service Assistance Pty Ltd - see Related Article). Professor Riley said that while an unfair dismissal action could no longer include any compensation for hurt or distress or humiliation, the IASA decision made clear that this was not the case for adverse action claims.
4. Remedies (even reinstatement) do not depend upon proof of a subsisting employment relationship (Stephens v Australian Postal Corporation again). Professor Riley noted that the court granted a reinstatement order even though the employee wouldn't have necessarily been employed at the time the order was made. It rejected Australia Post's argument that it only had the power to reinstate the worker for the nine days left on his fixed-term contract when sacked, saying it was probable he would have been given further employment. It also rejected the corporation's submission that it would be futile to order reinstatement because of the workers' injuries, saying there was no evidence that reinstatement was "unachievable".
5. Penalties have been well short of the maximums allowable (Fair Work Ombudsman v Drivecam Pty Ltd - see Related Article). Professor Riley said the Drivecam case, in which a hairdresser was underpaid because of a disability, was interesting because it went through the facts the court took into account in determining a civil penalty. The court noted that the company and its director were a small business; they didn't have any prior infringements; they didn't intend to contravene; they had sought advice, and had received poor advice from others; they addressed the complaint quickly; and they apologised when they realised they'd broken the law. The corporate employer was fined $1500 for each of its two contraventions from a maximum $33,000 for each breach, while the director who made all the decisions was $300 for each of two contraventions, from a possible $6,600.

What else is out there?

Professor Riley also gave the conference "anecdotal information" on what else was happening in the adverse action field.

She said it seemed that some employees were bringing adverse action claims to delay a termination in the middle of a disciplinary proceedings because they could get an interim injunction, which could be an advantage to them.

Also, she said, some employees with "no interest at all" in reinstatement were nevertheless asking for it because securing it put them in a better position to negotiate a more generous payout: "The Federal Court has said that you have to reinstate me - what will you pay me not to insist upon that right?"

She said there also seemed to be "quite a lot of unmeritorious claims" being brought for the "very vague" allegation of bullying and harassment following some kind of performance management.

"This suggests to me that there is possibly a poor understanding of these provisions, of what actually constitutes a workplace right. Perhaps it demonstrates that we no longer have in every workplace an effective union representative who can assist employees with their problems and their claims and help them understand what the law is and their rights."

She said while many were failing at the first hurdle, some of the unmeritorious claims were going "all the way up the system", and were even being conciliated in a non-compulsory conference by Fair Work Australia. "You have to say that Fair Work Commissioners are busy, expert well-paid people - are they the right people to be knocking heads together?"