NSW Damages for defamation in an adverse action claim

[Taco Cat]

Is there any reason why damages for defamation couldn’t be claimed in a successful general protections adverse action case?

Would the defamation need to be an adverse action itself caused by the exercise of a workplace right or could it be considered for damages in the same way that shock, distress and humiliation etc are as an effect of the adverse action?

Would a concerns notice need to be issued or would it be irrelevant for a claim under the Fairwork act?

 

[Rod]

GP claims and defamation are 2 separate claims. Can likely be brought together in the one claim, possibly the District Court in NSW, but your claim need to clearly show the different causes of action. Note the defamation claim is subject to adverse cost consequences if you lose, unlike the FWC claim in most, but not all cases..

 

[Taco Cat]

Thank you for your reply Rod. Sorry for the delay in commenting.

I still don’t see why a claim for compensation for defamation can’t be made under the Fairwork act as the Federal courts can make
“an order awarding compensation for loss that a person has suffered because of the contravention;”

Defamation is obviously (in theory), an adverse action at least altering the employee’s position if not injuring it. That defamation would need to be proven is no different than any other adverse action would need to proven.

 

[Rod]

The legal test applied to establish defamation is different to the test used to establish adverse action.

You may be confusing the remedy for each which is similar - damages for dafamation, versus hurt and humiliation for a GP claim.

Contravention of the the Fair Work Act does give raise to a defamation claim. What you are doing is a GP claim seeking an award of damages.