What are your rights if your employer makes changes to your employment

This is a very popular enquiry. Of course, while any change at work may be difficult for an employee to adjust to, only certain conduct by an employer will constitute a breach of the employment law.

What Constitutes Adverse Action by an Employer

Most employment relationships in Australia are governed by the Fair Work Act 2009 (Cth) (‘the Act’). Under the Act adverse action by an employer against an employee can include a range of conduct. According to section 342(1) of the Act, adverse action occurs if an employer:

• Dismisses the employee

• Injures the employee in their employment

• Alters the position of the employee to the employee’s prejudice

• Discriminates between the employee and other employees of the employer

The courts have interpreted "injures the employee in their employment" to cover injury of any compensable kind, and "alters the position of the employee to the employee’s prejudice" as a broad category that includes any adverse effect or deterioration in the advantages enjoyed by the employee before the conduct in question.

Adverse action must be taken for a prohibited reason, such as because the employee has exercised a workplace right or because of a discriminatory attribute (for example, age, race, sex, disability, or other attributes listed in section 351(1) of the Act).

What Remedies are Available to Employees

If an employee is subjected to adverse action, they may bring a claim under the general protections provisions of the Fair Work Act 2009 (Cth). Remedies available include:

1. Reinstatement to their former position (where there has been termination).

2. Compensation for loss and damage suffered as a result of the adverse action.

3. Other orders the court considers appropriate, which may include injunctions or penalties.

 What type of Damages may be Claimed

The types of damages that may be claimed include:

• Compensation for financial loss, such as lost wages and entitlements.

• Compensation for non-economic loss, such as distress or hurt feelings, where appropriate.

  
  

In some cases, penalties may be imposed on the employer, but these are payable to the Commonwealth, not the employee.

How to Initiate Action Against the Employer

The first step in the action against the employer should always be to seek qualified independent legal advice to understand your position and options available in your unique circumstances. Help is available from legal community centres, the Fair Work Ombudsman and private lawyers. 

Usually, most disputes can be resolved through negotiation or private mediation between the employer and employee.

To initiate action for unresolved disputes, an employee may lodge a general protections application with the Fair Work Commission. This is required before any court proceedings.

If the matter remains unresolved at the Fair Work Commission, the employee may then apply to the Federal Court or the Federal Circuit Court for further remedies.

Our lawyers can assist with your employment law issue. Our difference is the understanding of your objectives and helping you reach an outcome in the most cost-efficient and stress-free manner. Contact us today for a free initial consultation.