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Adverse Action in Action

The Fair Work Act 2009 (“FWA”) contains a number of “general protection” provisions which can provide useful protections for people in the workplace in circumstances where they are subject to adverse action because they have exercised a workplace right.

The Federal Circuit Court of Australia in the recent case, Al-Attar v Consulate General of the Republic of Iraq, Sydney [2021] FCCA 500 made a finding an employer breached the general protections provisions of the FWA by declining to renew an employee’s fixed term contract.

The applicant was employed by the respondent as a translator pursuant to two successive fixed term contracts, the last of which was renewed for the period of 1 May 2018 – 31 December 2018.

Prior to November 2018, the applicant exercised the following workplace rights:-

  • Lodged an application under the FWA seeking a stop bullying order;
  • Emailed the Australian Taxation Office regarding non-payment of superannuation and failure to provide payslips by the respondent; and
  • Enquired with the Fair Work Ombudsman regarding underpayment of entitlements.

On 27 November 2018, the applicant was notified that his contract would not be renewed and that he would be paid in lieu of working the remainder of his fixed term contract, which expired on 31 December 2018.

The respondent argued that the decision not to renew the applicant’s contract was made because the respondent had been mandated not to employ unqualified translators and that the decision was not related to the workplace rights exercised by the applicant. The Court did not accept this argument, as the respondent continued to employ other unqualified translators.

The Court determined that by not renewing the applicant’s contract, the respondent took adverse action against him, and it did so because he had exercised his workplace rights.

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