How to avoid Adverse Action claim

Human Consulting Services

December 16, 2015 | By Vanessa Wilson, Vitil

Recently at Vitil Human Resource Consulting Services, Perth's boutique Human Resources consulting specialist, we have been talking about what is Adverse Action and how do Perth Business Owners avoid a claim being made against them by an employee?

According to Fair Work:

A person (such as an employer), must not take any 'adverse action' against another person (such as an employee), because that person has a workplace right, has exercised a workplace right or proposes to exercise that workplace right.

The Fair Work Act 2009, defines a number of actions that could be deemed as adverse, which includes:

  1. Dismissing an employee, discriminating or altering their position to their detriment
  2. Refusing to employ a prospective employee or discriminating in the terms of offer
  3. Injuring or altering a position to the detriment of a contractor

How to avoid an Adverse Action claim

It is imperative that Perth employers are very clear when they are discussing performance issues with their teams. If you are taking action, be clear on the reasons for such action. You also need to be able to prove why certain actions were taken.

In these situations there is a reverse onus of proof, which means the burden of proof lies with the employer, whereby the employer is the one that must prove they DID NOT act against the employee.

Adverse action can include, but not limited to; dismissal, discrimination, demotion and disciplinary action, an unfavourable performance appraisal, placing pressure or duress on an employee, arguments or harsh conversations that, it can be argued, potentially damage the employee's status or reputation.

In the past the issuing of formal warnings to employees was an effective and relatively harmless strategy, but nowadays we need to take greater care with our human resources.

Vital Human Consulting Services and Risk prevention practices

To avoid a claim from human resources, it is essential that Business Owners understand their responsibilities and act in a fair manner when dealing with their human resources (employees). Some human resources risk prevention strategies include:

  • Have clear expectations in place with your human resources team through implementing well-defined HR policies and procedures that are used and enforced in the workplace, particularly regarding HR discrimination, human resources recruitment, bullying, harassment and human resources dispute resolution.
  • Listen to and consider complaints and grievances and consider them alarm bells that need actioning.
  • Consider all factors that affect a recruitment situation before making a decision. This will help to avoid any knee-jerk reactions.
  • Maintain clear documentation and take notes at any meetings. We recommend a witness is present at meetings, and try to implement a development plan to address the situation.
  • Should things continue, ensure you or your Manager clearly notates the reasoning for any decisions made.
  • Ensure that file notes clearly spell out the real reasons for taking adverse action and the process by which the decision to take that action was reached.
  • Ensure you are able to prove any allegations before commencing any discussions or proceedings, with investigation accounts up to date.
  • Have a clear discipline policy in place and ensure it is followed.
  • Be clear on who the decision maker is in the matter that arises, and ensure it is different to who the complaint is about.
  • Test the decision with the internal HR Manager or your HR Consultant at Vitil HR.
  • If you can, endeavour to resolve the matter before it becomes an issue.
  • Also be aware that all documentation is discoverable by FWA.
  • Contact Vitil Human Consulting Services for advice.

Remember that the majority of adverse action claims are unsuccessful but if a Business Owner has concerns, it is essential they are documented along with how they have attempted to address the situation. The employer must also be able to demonstrate positively, what their reasoning for termination were.

Claims can be time consuming and costly to defend therefore do the right thing by your employees and you will avoid a claim from ever eventuating.

Vitil Human Resource Consultants

If you have any human recruitment concerns or HR questions, contact Vitil's experienced Advisers for more information.

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