What is altering the position of the employee to the employee’s prejudice?

Altering the position of an employee to the employee’s prejudice is a broad additional category of adverse action. It covers not only legal injury but any adverse affect to, or deterioration in, the advantages enjoyed by the employee before the conduct in question.[1]

A prejudicial alteration to the position of an employee may occur even though the employee suffers no loss or breach of a legal right. It will occur if the alteration in the employee’s position is real and substantial rather than merely possible or hypothetical.[2]

In order to determine that a person’s position has been altered to their prejudice, it must be found that:

• the employee is, individually speaking, in a worse situation after the employer’s acts than before them
• the deterioration has been caused by those acts, and
• the acts were intentional in the sense that the employer intended the deterioration to occur.[3]

Employee’s position altered to their prejudice

Issuing a written warning

Construction, Forestry, Mining & Energy Union v Coal & Allied Operations Pty Ltd [1999] FCA 1531 (5 November 1999), [(1999) 140 IR 131].

The Court accepted the applicant’s contention that the issuing of a written warning has the effect of making the employee’s continuing employment less secure. Conduct engaged in by an employee who has received a warning could lead to the termination of his or her employment although the same conduct engaged in by an employee who had not received a warning would not lead to the termination of that employee’s employment.

It was found therefore that by issuing a written warning the respondent altered the position of the employee to the employee’s prejudice.

Disappointment of an expectation

Australasian Meat Industry Employees Union v Belandra Pty Ltd [2003] FCA 910 (29 August 2003), [(2003) 126 IR 165].

Employees were terminated when their employer’s premises were destroyed by fire. The employer told them they would be re-deployed when the operation resumed. However, the employer subsequently decided not to resume that operation and not to re-deploy those employees. Although the employees had no legal right to re-employment, it was held that the disappointment of their expectation was an alteration of their position to their prejudice.

Lessening of security in employment

Community & Public Sector Union v Telstra Corporation Ltd [2001] FCA 267 (21 March 2001), [(2001) 107 FCR 93].

An email was sent to managers directing that preference be given to employees who had signed AWAs in a redundancy process. The Court found that the email constituted an instruction that employees employed under awards or certified agreements were to be discriminated against in that process. Before the sending of the email those employees enjoyed the benefit of being subject to redundancy only in accordance with a process which rated their eligibility on the basis of merit.

There was an adverse affection of, or deterioration in, that benefit after the sending of the email and the employment of affected employees had become less secure than it had been previously. In those circumstances the position of the relevant employees had been altered to their prejudice.

Alteration to roster

Construction, Forestry, Mining and Energy Union v Endeavour Coal Pty Ltd [2013] FCCA 473 (27 June 2013).

The applicant was removed from the weekend shift and placed on a weekday afternoon shift purportedly because of absences from work in order to care for his wife and for occasions of his own ill health.

The Court was satisfied that the shift change altered the applicant’s position to his prejudice because he lost the additional annual leave entitlement which accompanied work on weekend shifts and had to work longer hours on the weekday shift than he had done on the weekend day shift.

Reduced status and level of responsibility

Wilkie v National Storage Operations Pty Ltd [2013] FCCA 1056 (9 August 2013).

The applicant was employed by the respondent as the Centre Manager at one of its storage sites but was transferred to another location where she was put in the role of Assistant Centre Manager after an occasion where she left work early to pick up her son from school.

The Court was satisfied that the alteration in the applicant’s status from Centre Manager to Assistant Centre Manager was an alteration in her position to her prejudice, in that it reduced her status and level of responsibility.

Suspension from duties

Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Visy Packaging Pty Ltd (No 3) [2013] FCA 525 (29 May 2013).

The applicant was a health and safety representative at the factory of the respondent. He ‘tagged’ a forklift that he considered to be unsafe. The applicant was suspended and an investigation was conducted. At the conclusion of the investigation, the applicant was given a final written warning.

In relation to the suspension, the Court said that the removal of an employee from their employment against his or her will, even temporarily, will usually be adverse to their interests.

It was found that the suspension resulted in a deterioration in the advantages otherwise enjoyed by the applicant in his employment and constituted adverse action.

Suspension and disciplinary process

Murray v The Peninsula School [2015] FCA 447 (12 May 2015).

The applicant was employed as an Audio-Visual Co-ordinator by the respondent. In an application for an injunction the Federal Court held that suspending the employee on pay may constitute adverse action, and that subjecting the employee to a disciplinary process including an investigation may constitute adverse action.

Interim orders were made restraining the school from dismissing the employee, or subjecting him to the disciplinary process until the matter was further determined.

Employee’s position NOT altered to their prejudice

External recruitment for a vacant position

Wolfe v Australia and New Zealand Banking Group Ltd [2013] FMCA 65 (7 February 2013).

During a restructuring process in which the applicant was retrenched, another job was upgraded and subsequently filled by an external candidate. The applicant alleged that by not giving him an opportunity to apply for the position and by appointing an external candidate to that role instead of retaining him, the respondent injured him in his employment, altered his position to his detriment and discriminated between him and other employees.

The Court held that the action could not be considered to have altered the applicant’s position to his prejudice because there was no real or substantial possibility that he could have been successful in obtaining the role.

Commencement of investigation

Jones v Queensland Tertiary Admissions Centre Ltd (No 2) [2010] FCA 399 (29 April 2010), [(2010) 186 FCR 22].

The applicant was the CEO of QTAC. She claimed that she was subject to improper investigation and bullying complaints after participating in enterprise bargaining negotiations. The Court referred to various authorities, and accepted as a general proposition that the commencement of an investigation by an employer into conduct of an employee can in certain circumstances constitute adverse action, either as injury or alteration of the position of the employee. In this case, however, the applicant specifically pleaded that she had been subject to adverse action because the investigation was commenced without reasonable cause, or because QTAC ought to have known that complaints against her were not genuine but were made in the context of her role in enterprise agreement negotiations.

The Court did not accept this argument and accordingly did not consider that the commencement of the investigation into the complaints against the applicant constituted adverse action against her.