Adverse Action: The Sleeping Giant Awakens

Wasn’t it Lady Bracknell in Oscar Wilde’s The Importance of Being Earnest who uttered something like “the loss of one could be considered a misfortune, but two can only be considered as carelessness”?

I was reminded of this when I read about the Virgin Blue story which you may have seen in the news last month – it certainly caught my attention and was covered extensively.

Essentially, not one, but two of the airline’s employees have allegedly been made redundant because they were pregnant or were taking parental leave and are now suing the airline.

Virgin Blue is vehemently refuting these claims. After all, more than half of the airline’s workforce is female.

However, after mediation failed to resolve their claims, both women are set to commence legal action in the Federal Court through Maurice Blackburn Lawyers.

In a media release on the Maurice Blackburn website, I read that the pair are claiming that the airline had not followed its own redundancy policy and that they had been exposed to inappropriate comments about their physical appearance when pregnant. They had also previously heard comments by executive management including that “all females should be on contracts so that when they get pregnant it is easy for the company to get rid of them.”

But for Virgin Blue, this isn’t an unfair dismissal claim – what makes this case really interesting is the adverse action provisions of the Fair Work Act 2009 which expand the scope of discrimination actions. Essentially an adverse action claim can be brought against an employer if they dismiss an employee; injure an employee during their employment; demote an employee, or discriminate against the employee. What’s more, threatening to take the above action also amounts to adverse action.

In effect, adverse action provisions provide employees who are paid above the high-income threshold or have yet to complete the relevant minimum period of employment – and are therefore not entitled to make an unfair dismissal claim – with a powerful means to make a claim through the courts.
Adverse action is the sleeping giant of the Fair Work Act. To minimize your exposure to an adverse action claim, it’s critical that your business is fully compliant with your employer obligations under the Act. You need to ensure that all your employee management decisions are transparent, sound, and defensible. So it makes sense to review all your HR policies and procedures now. It’s critical that you communicate and follow clear guidelines for dealing with dispute resolution, discrimination, bullying, harassment, and redundancy.

Adrienne Unkovich is the Managing Director of Workforce Guardian – an online employment relations subscription service for Australian employers.


This article is intended to provide commentary and general information. It should not be relied upon as legal advice. Formal legal advice may be necessary for particular transactions or on matters of interest arising from this article. Workforce Guardian Pty Ltd ( is not responsible for the results of any actions taken on the basis of information in this article, nor for any error or omission in this article.

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