Workplace Rights and Adverse Action.

The Applicant bears the onus of proving that:

1. he made the complaints alleged by him;
2. the complaints were complaints  in relation to his employment within the meaning of341(1)(c)(ii) of the Fair Work Act;
3. The Employer or its officers took the action against him that he alleges was adverse action for the purposes of the Act; and
4. the action or actions alleged by Mr Hagos either injured him in his employment or altered his position to his prejudice.

Workplace right is defined in s.341 of the Act which provides:

(1) A person has a workplace right if the person:

(a) is entitled to the benefit of, or has a role or responsibility under, a workplace law, workplace instrument or order made by an industrial body; or

(b) is able to initiate, or participate in, a process or proceedings under a workplace law or workplace instrument; or

(c) is able to make a complaint  or inquiry:

(i) to a person or body having the capacity under a workplace law to seek compliance with that law or a workplace instrument; or

(ii) if the person is an employee–in relation to his or her employment.

Under s.342(1) of the Act  adverse action  is taken by an employer against an employee in specified circumstances, relevantly if the employer:

(a) dismisses the employee; or

(b) injures the employee in his or her employment; or

(c) alters the position of the employee to the employee’s prejudice; or

(d) discriminates between the employee other employees of the employer.

Section 360 of the Act provides that “a person takes action for a particular reason if the reasons for the action include that reason.” Section 361(1) (the so-called “reverse onus” provision) is as follows:

(1) If:

(a) in an application in relation to a contravention of this Part, it is alleged that a person took, or is taking, action for a particular reason or with a particular intent; and

(b) taking that action for that reason or with that intent would constitute a contravention of this Part;

it is presumed, in proceedings arising from the application, that the action was, or is being, taken for that reason or with that intent, unless the person proves otherwise.