Employers beware! The usage of this law is only just starting to rise to the surface. As a result, employers need to be more diligent than was first thought necessary during the early part of a contract of employment.

I was reading a recent decision of the Federal Court of Australia that determined a claim that an employee was terminated for reasons including due to the employee’s (young) age. The Court in this matter considered all the submissions of both sides and in the end was of the view that it could not “determine with sufficient certainty  whether or not Mr Carr’s age was a material and operative factor” when the employer decided to terminate Mr Carr.

So in the normal assessment of events this would be called a draw because, in relation to this part of the claim, neither party was able to sufficiently persuade the Judge to accept their argument. As such, the presiding judge would reject the claim and dismiss the matter and the employer would have no case to answer as the employee failed to prove their case.

However, due to the structure of the legislation the judge must rule against the employer because the law places the onus on the employer to establish their defence, and this was not done in this case.

This week one of our staff has been assisting a member who has been served with an  (adverse action) claim. In this case the employee had been employed for less than 2 months. The employer alleges the reason for termination was poor performance. The employee, in his claim, alleges that he was terminated after he asked the employer for the name of the award he was employed under and for his pay slips. I expect that the employee will argue that it was because he asked for this information he was terminated.

The Act seeks to protect employees where they may have a workplace right or whether the employee has acted (or not acted, proposes the act or not act) on that workplace right. Any “adverse action” against an employee because of such workplace right will give an employee a right to seek redress. “Adverse action” could include dismissal or to injure an employee in employment such as unilateral changes to contract of employment, altering the position of an employee in employment or discriminating between the employee and others. Adverse action will also include any threatened action.

It would be prudent to discuss with MTA any plans to terminate an employee. MTA Employment Relations staff will be able work with you to put in place a plan of action to assist you to achieve the appropriate outcome with reduced scope for inadvertent adverse action claims arising out of the process.