Anning v Western Sydney University (No.2)

Anning (the applicant) brought proceedings against Western Sydney University (the respondent) alleging contraventions of the *Fair Work Act 2009* (Cth) concerning adverse action taken against him in his employment. The dispute centred on the respondent's conduct following the applicant's injury and subsequent inability to perform his role.

The court was required to determine whether the respondent had taken adverse action against the applicant for a prohibited reason, specifically by altering his position to his prejudice. Key issues included whether the respondent's failure to re-engage the applicant in any capacity after his injury constituted "action" for the purposes of the adverse action provisions, and whether any contractual terms survived the termination of the applicant's employment in a manner that would support his claim. The court also considered whether the circumstances amounted to a redundancy.

Judge Cameron held that the respondent's inaction, in failing to offer the applicant alternative employment or to re-engage him, did not constitute "action" within the meaning of section 342(1) of the *Fair Work Act 2009*. The court reasoned that the adverse action provisions require a positive act by the employer, not merely a failure to act. Furthermore, the court found that no terms of the applicant's employment contract survived its termination in a way that would impose an obligation on the respondent to re-engage him. Consequently, the court determined that the applicant had not established that the respondent had taken adverse action against him.