Identifying decision-makers key in defending adverse action claims
BY Rose Dimitrious and Kelvin Lee 03 Apr 2025
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Two recent Federal Court cases demonstrate that employers failing to identify decision makers involved in an adverse action claim could be a deal breaker in defending a general protections claim.
Under Part 3-1 of the Fair Work Act 2009 (Cth) (FW Act), the general protections scheme provides wide-ranging protections against adverse or unfair treatment because of prohibited reasons such as:
A person exercising or proposing to exercise a workplace right, including making a complaint or enquiry in relation to the employee’s employment.
Discrimination.
Temporary absence from work due to illness or injury.
Where an employee alleges that their employer has taken adverse action against them, s. 361 of the FW Act operates so that it is presumed that the adverse action was taken because of the prohibited reason(s) unless the employer proves otherwise.
Under the provision, the employer has the onus of proving that the pleaded prohibited reason or intention for taking the action was not a substantial or operative part of its reasons for engaging in the conduct or action. In practical terms, the employer is required to establish:
The identity of the decision maker, or decision makers, involved in the conduct or action.
The reasons why the decision maker, or decision makers, engaged in the conduct or...
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