Adverse Action – Limits on what constitutes a “Workplace Right”


In January 2013, we published a legal update regarding the case ofBeauty and the Geek contestant Adam Marshall, who made an adverse action claim against his employer, the Bureau of Meteorology.

He claimed that he had exercised a “workplace right”, being an entitlement under an enterprise agreement to take leave when medically unfit.  The Federal Magistrates Court (now known as the Federal Circuit Court) accepted that this was a workplace right for the purposes of an adverse action claim.

In the recent case of Daw v Schneider Electric (Australia) Pty Ltd [2013] FCCA 1341, Mr Daw tried to stretch the definition of “workplace right” further.

Mr Daw claimed that his employment was terminated for refusing his employer’s request to carry out an act that was either illegal or, if not illegal, not reasonable in all the circumstances.  He had been asked to do professional engineering services work , as defined in the Professional Engineers Act 2002 (Qld), in circumstances where neither Mr Daw nor his direct supervisor was a registered professional engineer as required by that Act.

The Judge agreed with Mr Daw’s factual contentions but did not agree that, by refusing to carry out what he correctly saw as illegal or unlawful acts, he was exercising a workplace right for the purposes of the Fair Work Act.  As a result, his claim failed.

Mr Daw was relying on his contractual right to refuse to do work that is illegal or unreasonable.  The Judge held that this was not a right that arose under “any other law of the Commonwealth… that regulates the relationships between employers and employees”.

Specifically, the Judge found that if the workplace right does not arise from a workplace instrument or an order of an industrial body, the workplace right must arise through statute law.  It cannot arise by reference to the general law of contract or the private rights and entitlements that accrue between employer and employee pursuant to the employment contract.

If Mr Daw’s claim had been successful, it would have vastly expanded the circumstances in which employees could make adverse action claims.  The position remains however that the exercise of the “workplace right” which an employee claims was the cause of their dismissal must arise through a workplace instrument (award, enterprise agreement, etc), an order made by an industrial body or a statute that regulates the relationships between employers and employees.

If you have any other questions about this update or any other employment law issues please contact Tom Darbyshire on (08) 9321 3755.

The information published on this website is of a general nature and should not be construed as legal advice. Whilst we aim to provide timely, relevant and accurate information, the law may change and circumstances may differ. You should not therefore act in reliance on it without first obtaining specific legal advice.