If the reason is protected, you carry the onus.

The reason is the offence.

Adverse action means dismissing someone, injuring them in their employment, altering their position to their detriment, or discriminating between them and other staff — and refusing to hire a prospective employee counts too. It becomes unlawful when taken because of a protected reason: a workplace right (the benefit of a workplace law, or the ability to make a complaint or inquire about pay or conditions), industrial activity (union membership or non-membership included), or a protected attribute such as sex, race, age or disability. Threatening or organising adverse action is also unlawful, as are coercion and undue influence over how someone exercises a right.

Two features make this the highest-stakes claim you face. First, the reverse onus: once a claimant alleges a prohibited reason, the FW Act presumes it unless you prove otherwise (s 361). Your contemporaneous file notes, warnings and decision records are the defence. Second, timing: dismissal-related claims go to the FWC within a strict 21 days, remedies include injunctions, uncapped compensation and civil penalties — and retaliation against someone for complaining is itself a breach.

Federal and SA law run in parallel; a complainant picks one lane.

Federal statutes — the Sex, Racial, Disability and Age Discrimination Acts — prohibit direct and indirect discrimination across the whole employment lifecycle, with complaints to the AHRC and, unresolved, the Federal Court. The Equal Opportunity Act 1984 (SA) covers similar grounds, administered by the Commissioner for Equal Opportunity with referral to SAET or SACAT. The laws operate concurrently, but a person generally chooses one avenue, not both — and the clocks differ: generally 24 months under the AHRC process versus 12 months under SA law. Vicarious liability means you answer for your people’s conduct unless you took all reasonable steps to prevent it — which makes policies, training and adjustments legal necessities, not niceties. Provide reasonable adjustments unless unjustifiable hardship, and watch for indirect discrimination: neutral-looking rules that disproportionately burden one group.

One incident is enough — and every worker is covered.

Sexual harassment is unwelcome conduct of a sexual nature where a reasonable person would have anticipated the possibility the person would be offended, humiliated or intimidated. It can be a single incident — unlike bullying, which is characterised by repeated unreasonable behaviour. Since 6 March 2023 the FW Act expressly prohibits sexual harassment in connection with work, protecting all workers — employees, contractors, volunteers, even prospective workers. The defence, again, is having taken all reasonable steps to prevent it.

The FWC’s machinery has teeth: workers can seek Stop Bullying Orders (where bullying is repeated and risks continuing) and, since 2023, Stop Sexual Harassment Orders and dispute applications — with conciliation, mediation, and arbitration by consent that can award compensation. Your job is to resolve well internally first: multiple reporting channels, prompt and impartial investigation, natural justice for all parties, and fierce protection of the complainant from reprisal — which would otherwise become a general protections claim in its own right.

Prevention is now the legal standard, not the aspiration.

Since December 2022, the Sex Discrimination Act imposes a positive duty on all organisations and PCBUs — every size, private and public — to take reasonable and proportionate measures to eliminate sex discrimination, sexual harassment, sex-based harassment, hostile workplace environments on the basis of sex, and associated victimisation, as far as possible. From 12 December 2023 the AHRC can investigate suspected non-compliance, issue compliance notices, accept enforceable undertakings, and seek Federal Court orders.

The AHRC’s guidelines (August 2023) set seven standards: leadership, culture, knowledge, risk management, support, reporting & response, and monitoring, evaluation & transparency. Read them as a management system, not a policy shelf: assess risks, prevent them, support people who report, and measure whether it’s working.

Harmful behaviour is a psychosocial hazard — manage it like one.

Under the Work Health and Safety Act 2012 (SA) your primary duty of care covers psychological health. Bullying, sexual harassment and other harmful behaviours are psychosocial hazards to be identified, assessed and controlled like physical ones, with consultation with workers and HSRs on the risks and controls. Run a single intake, dual lens: every serious complaint gets an HR case owner and a WHS risk owner, prefers higher-order controls (work design, staffing, systems) over training-only fixes, and documents the “reasonably practicable” rationale. Serious incidents can be notifiable to SafeWork SA; injuries engage the ReturnToWorkSA scheme.

Build hold points where decisions meet protected people.

Map the adverse-action risk moments — termination, redundancy selection, demotion, roster changes, contract non-renewal — and put a checkpoint in front of each: has this person recently exercised a right, made a complaint, or do they hold a protected attribute, and can you show documented, legitimate reasons? Then close the governance loop: registers, training records, and metrics reported upward, because “policies lived, not just written” is the test regulators now apply.