It is unfortunately not uncommon for managers, supervisors, bosses, and owners to make overt or implied threats concerning their employee’s ongoing future at the business. While in the past it would not have necessarily been possible to commence legal action in response to such threats, since the passing of the Fair Work Act 2009 (Cth) there has been the potential for an employee who has been subject to such threats, to commence legal action depending upon the reason or reasons for the threat.
Part 3-1 of the Fair Work Act 2009 (Cth) protects employees from adverse action being taken against them because of the exercise of a protected workplace right or the possession of a protected attribute. Per section 342(1) of the Fair Work Act 2009 (Cth), adverse action is said to include instances where an employer:
- dismisses the employee
- injures the employee in his or her employment
- alters the position of the employee to the employee’s prejudice
- discriminates between the employee and other employees of the employer
However, per section 342(2) the mere ‘threatening’ or ‘organising’ of one of the above types of adverse action is also an adverse action. This means that employees may bring legal action against their employers if they believe that threats of dismissal have been made because they exercised a protected workplace right (included but not limited to taking a period of leave, making a WorkCover claim, making an employment-related complaint or inquiry, etc.) or because of a protected attribute (including but not limited to a person’s sex, race, disability, political opinion, religious belief, etc.). This legal action can importantly be brought while the employee is still employed, via an application under section 372 of the Fair Work Act 2009 (Cth).
Per CPSU v Telstra Corporation Limited (No 2) (2000) 101 FCR 45 [15], a ‘threat’ must be made “for the purpose of intimidating a person”, meaning that the threat must either be made directly to the person or made in such a way that it was intended to or was like to “find its way to the person threatened”.
In the case of Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Visy Packaging Pty Ltd (No 3) [2013] FCA 525 at [103], the court agreed with authority from CPSU v Telstra Corporation Limited and clarified that threats of adverse action are only unlawful if taken for a prohibited reason, but also indicated how employment investigations may be classified as adverse action, at [135]:
“…an investigation brought in good faith and carried out properly may nevertheless constitute adverse action. It must be accepted that an investigation which threatens the possibility of dismissal (as in the present case) will operate to reduce the security of future employment of the employee concerned.”
In the case of Sayed v Construction, Forestry, Mining and Energy Union [2015] FCA 27 [42] the employer accepted that issuing the employee with a ‘show cause’ letter constituted a threat to take adverse action, by way of dismissal, within the scope of section 342(2) of the Fair Work Act 2009 (Cth). Sayed was paid compensation for the distress and humiliation caused by the employer’s contravention.
If you believe that your employer has made a threat to dismiss you, you should seek legal advice promptly, before such threats become a reality.