An overview of legal procedure & case law
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:
[1] Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia [1998] HCA 30 (4 May 1998) at para. 4, [(1998) 195 CLR 1]; Klein v Metropolitan Fire and Emergency Services Board [2012] FCA 1402 (10 December 2012) at para. 84, [(2012) 208 FCR 178].
[2] Klein v Metropolitan Fire and Emergency Services Board [2012] FCA 1402 (10 December 2012) at para. 84, [(2012) 208 FCR 178]; Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia [1998] HCA 30 (4 May 1998) at para. 4, [(1998) 195 CLR 1].; Qantas Airways Limited v Australian Licensed Aircraft Engineers Association [2012] FCAFC 63 (4 May 2012) at para. 32, [(2012) 202 FCR 244].