Adverse Action Under the Fair Work Act: What Employers & Employees Need to Know

Adverse action is any harmful act taken by an employer against an employee because that employee exercised a workplace right, engaged in industrial activity, or possesses a protected attribute. Under the Fair Work Act 2009 (Cth), it includes firing, demoting, refusing to hire, or altering an employee’s position to their prejudice.

For employees, understanding adverse action means knowing when a workplace punishment crosses the line from poor management into illegal conduct. For employers, it means recognising the specific behaviours that expose your business to Fair Work Commission (FWC) claims, financial penalties, and reputational damage.

This guide covers how to identify adverse action, the workplace rights that are protected, how the reverse onus of proof works, what remedies are available, and the practical steps to take if you’re facing or defending a claim.

What Behaviour Is an Example of Adverse Action?

An example of adverse action is an employer cutting your shifts immediately after you ask to be paid penalty rates. However, for a behaviour to qualify as illegal adverse action under the Fair Work Act, it must directly connect a negative consequence to a legally protected workplace right, not simply be a case of poor management. This is easier said than done.

The Adverse Action Self-Assessment Framework

Work through these three steps. If the answer is YES to all three, there are likely grounds for a General Protections claim.

Step 1 — The Action. Did the employer fire, demote, cut hours, change the role, or refuse to hire? If no negative consequence actually occurred, the threshold has not been met. If yes, proceed.

Step 2 — The Reason. Was the action taken specifically because the employee:

• Made a complaint or inquiry about pay, conditions, or safety?
• Took lawful sick leave, carer’s leave, or parental leave?
• Joined, refused to join, or participated in a union?
• Has a protected attribute such as pregnancy, race, age, or disability?

Step 3 — The Connection. One way you can demonstrate a connection is whether you can demonstrate a close timeline? For example, you emailed HR about missing superannuation on Tuesday and your manager removed you from the premium client roster on Thursday. The closer the adverse response follows the protected activity, the stronger the temporal connection. Another way to demonstrate a connection is with evidence, for instance, in an email your manager says words to the effect of “Since you took sick leave a few times this month, we don’t think you have the commitment to the company and therefore, we will not be promoting you to senior.” It is important that you keep whatever evidence you can to support your claims. Furthermore, it can be hard to determine the connection sometimes and also how strong it is for your case, therefore, it is important you seek advice from our legal team before making a claim.

What Are the 5 Common Rights Protected by the Fair Work Act?

The Fair Work Act protects specific “workplace rights.” If an employer punishes an employee for exercising any of these, it constitutes adverse action.

1. Claiming minimum wage or award rates — including penalty rates, overtime, and superannuation entitlements.
2. Taking protected leave — annual leave, personal/carer’s leave, parental leave, or compassionate leave under the National Employment Standards (NES).
3. Making a formal workplace complaint — raising concerns about bullying, harassment, discrimination, or unsafe conditions.
4. Participating in union activities — joining a union, attending meetings, or acting as a workplace representative.
5. Requesting flexible working arrangements — as provided under s.65 of the Fair Work Act, including changes to hours, location, or patterns of work.

Serious Misconduct vs. Automatically Unfair Dismissals

Serious misconduct justifies immediate (summary) dismissal without notice. Automatically unfair dismissals occur when an employer fires someone for illegal, protected reasons, exposing the business to FWC penalties and compensation orders.

Serious Misconduct (Legal to Dismiss)	Can Potentially Be Adverse Action
1. Theft, fraud, or workplace violence	1. Firing due to temporary absence for illness or injury
2. Intoxication at work affecting safety or performance	2. Firing due to pregnancy or taking parental leave
3. Refusing a lawful, reasonable direction	3. Firing for filing a workplace bullying complaint
4. Serious breaches of WHS duties	4. Firing based on race, sex, age, disability, or religion
5. Conduct causing imminent risk to business reputation	5. Firing for being a union member or representative

For employers: Even where serious misconduct has occurred, procedural fairness still matters. A termination based on legitimate grounds can still be challenged if the investigation or process was unfair. For employees, if your dismissal falls into the right-hand column, you should file a General Protections application within 21 days.

The Reverse Onus of Proof in Adverse Action Claims

One of the most significant features of an adverse action claim is the reverse onus of proof under s.361 of the Fair Work Act. In most legal proceedings, the person making the claim bears the burden of proving their case. Adverse action claims work differently.

Once the employee establishes that adverse action was taken and that they hold a workplace right, the burden shifts to the employer to prove, on the balance of probabilities, that the action was not taken for a prohibited reason. This means the employer must demonstrate a legitimate, non-discriminatory reason for the decision.

For employers, this makes documentation critical. If you cannot produce contemporaneous records showing the genuine reason for a termination, demotion, or change to conditions, the FWC may draw an adverse inference — that the action was, in fact, taken for a prohibited reason.

For employees, the reverse onus is a powerful advantage, but you still need to establish the initial facts clearly. That means documenting the timeline between your protected activity and the employer’s response.

We cover the reverse onus in detail, including how it applies at conciliation and hearing stages, in our dedicated guide: Reverse Onus of Proof in Fair Work Claims.

Adverse Action Claim Remedies and Payouts

If the Fair Work Commission or Federal Circuit and Family Court finds that adverse action occurred, several remedies are available. The type and value of the outcome depends on the circumstances of the case, the severity of the conduct, and whether the applicant was dismissed or remains employed.

Remedies for Employees

1. Reinstatement — the FWC can order the employer to reinstate the employee to their former position, or to a comparable role. This is the primary remedy under the Act, although it is not always practical where the employment relationship has broken down.
2. Compensation — where reinstatement is not appropriate, the court may award financial compensation. Unlike unfair dismissal claims, General Protections compensation is not capped at six months’ wages. Awards can include lost wages, superannuation, and in some cases, compensation for non-economic loss such as distress and humiliation.
3. Pecuniary penalties — the court can impose fines on the employer (or individual managers) for contravening the General Protections provisions. Current maximum penalties are up to $19,800 per contravention for an individual and up to $99,000 per contravention for a body corporate, though these figures are indexed and should be verified at the time of filing.
4. Injunctions and other orders — the court may order the employer to stop the adverse conduct, vary a contract, or take specific corrective action.

What Employers Risk

Beyond financial exposure, adverse action findings create precedent within your business. They can trigger Fair Work Ombudsman audits, damage employer brand reputation, and undermine staff trust. Proactive compliance, clear policies, documented decision-making, and procedurally fair processes, is the most cost-effective risk mitigation strategy.

What Should I Do If I’m Facing Adverse Action?

If you are facing adverse action, you must immediately secure evidence, lodge a formal dispute internally in writing, and, if dismissed, file a General Protections application with the Fair Work Commission within the strict 21-day deadline. Missing this deadline can permanently forfeit your right to make a claim. Prefer to have a professional handle this for you? Contact Fair Workplace Solutions today.

The Fair Work Incident Documentation Log

A well-structured incident log is your most powerful tool for establishing the initial facts that trigger the reverse onus of proof. Use this format to record every incident:

Field	Your Entry
Date & Time	[Exact date and time of the incident]
The Protected Action	[e.g., “Emailed HR to ask about missing superannuation contributions”]
The Adverse Response	[e.g., “Manager removed me from the premium client roster the following day”]
Witnesses / Evidence	[e.g., “Slack screenshot saved to personal drive; colleague Jane Doe present”]
Days Since Protected Action	[e.g., “2 days” — the shorter the gap, the stronger the inference]

Your Step-by-Step Action Plan

1. Secure your evidence immediately. Forward relevant emails, rosters, and performance reviews to your personal email address before you lose access to company systems. Save screenshots of Slack messages or internal portals. If you received a verbal direction, send a follow-up email confirming what was said.

2. Create a paper trail with neutral language. Email HR or your manager using measured, factual language: “I noticed my shifts were reduced immediately following my inquiry about overtime rates on [date]. Could you please clarify the operational reason for this change?” This establishes a documented connection between your protected action and the employer’s response.

3. Observe the 21-day rule. If terminated, you have exactly 21 days from the date of dismissal to file a General Protections application (Form F8) with the FWC. This deadline is strictly enforced and extensions are rarely granted.

Where to Go From Here

If you’ve worked through the Self-Assessment Framework and filled out the Incident Documentation Log, your next step depends on your current employment status.

If you are still employed: Request a confidential consultation with an employment lawyer to draft a “without prejudice” letter. This signals awareness of your rights and opens the door to negotiated resolution.

If you have been dismissed: Begin your Fair Work Commission application immediately. Calculate your 21-day deadline from the date of termination and prioritise lodging Form F8.

If you are an employer: Audit your termination and performance management processes now. Ensure every significant employment decision is documented with a clear, contemporaneous, non-discriminatory rationale. This is your strongest defence if a claim is made.

Visit fairworkplacesolutions.com.au or call our team to discuss your next steps.

Related Resources

• General Protections Claims Under the Fair Work Act
• Reverse Onus of Proof in Fair Work Claims
• Employment Discrimination: Your Rights and Legal Options
• Unfair Dismissal vs. General Protections: Which Claim Is Right for You?

Disclaimer: This article is intended as general information only and does not constitute legal advice. Every employment situation is different. If you require advice specific to your circumstances, please contact Fair Workplace Solutions or an accredited employment lawyer.