The Industrial Relations Act 1979 prohibits an employer from taking damaging action against an employee because the employee is able to make an employment-related inquiry or complaint to their employer or another person or organisation.
Damaging action includes:
- dismissing an employee, altering an employee’s position to their disadvantage, refusing to promote or transfer an employee, or injuring an employee in their employment with the employer or another person (or threatening to do any of these things); and
- refusing to employ a prospective employee, or discriminating against a prospective employee, in their proposed terms and conditions of employment (or threatening to do either of these things).
An employment-related inquiry or complaint is one that an employee is able to make based on an entitlement or right that the employee has:
- under a contract of employment;
- an industrial instrument; or
- legislation relating to the employment.
The employee’s complaint must be made genuinely, in good faith and for a proper purpose.
An employee is able to seek a civil penalty and relief in the Industrial Magistrates Court (IMC) if their employer has taken damaging action against them because the employee made (or proposed to make) an inquiry or complaint. Industrial inspectors and unions are also able to take proceedings to the IMC for damaging action.
When determining whether damaging action has occurred, there is a reverse onus of proof on the employer to prove that they did not take the action because the employee made (or proposed to make) an inquiry or complaint.
If the IMC determines that an employer has engaged in damaging action against an employee, it may impose a maximum penalty of $13,000 for an individual and $65,000 for a body corporate (in the case of a knowingly committed ‘serious contravention’, the maximum penalties are 10 times higher). The IMC may also make an order for relief to:
- reinstate the employee if they were dismissed from employment;
- employ a prospective employee who was refused employment; and
- pay the employee compensation for loss or injury suffered as a result of the contravention.
If the IMC makes an order for relief, the employer is required to comply with it. Failure to comply constitutes an offence, which will carry a maximum fine of $13,000 and a daily fine of $1,000 for each day or part day during which the offence continues.
The IMC cannot make an order in relation to damaging action if the employee has applied for relief in relation to the same damaging action (e.g. the same dismissal, or the same refusal to promote or transfer the employee) under another provision of the IR Act or any other written law. For example, an employee could not obtain an order from the IMC if the damaging action was dismissal and the employee had made an unfair dismissal claim to the Western Australian Industrial Relations Commission.
The IMC can also order a third party to stop taking any damaging action against the employee and to take any action necessary to give effect to an order in relation to damaging action.
