What is adverse action?

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There has been some judicial controversy about what constitutes adverse action for the purposes of the general protections’ provisions of the Fair Work Act 2009. Here is a passage from a case which explains the concept.

“In Patrick Stevedores Operations No.2 Pty Ltd v Maritime Union of Australia & Ors[63] the High Court discussed the expression injure an employee in his or employment and concluded that the expression encompassed:

“…a broad additional category which covers not only legal injury but any adverse affectation of, or deterioration in, the advantages enjoyed by the employee before the conduct in question.”

[63]  Patrick Stevedores Operations No.2 Pty Ltd v Maritime Union of Australia & Ors (1998) 195 CLR at 4

In Transport Workers’ Union of Australia v Premier Motor Services Pty Ltd[64] Perry J characterised the prejudicial of a person’s position as “a broad additional category which covers not only legal injury but any adverse affectation of, or deterioration in, the advantages enjoyed by the employee before the conduct in question.”

Necessarily, it is necessary to compare the position of the employee before the impugned conduct and their position afterwards, in order to determine whether there has been a detrimental alteration occasioned to him or her.”

Adamczak v Alsco Pty Ltd (No 2 ) (2018) FCCA 1252 delivered 25 May 2018 per Brown J