The Federal Court has awarded compensation for hurt and
humiliation in an adverse action ruling related to an employee
being negatively assessed by his employer.
The ruling made it clear that action taken by an employer in
response to a complaint by an employee made prior to 1 July 2009,
The Court also stated that a negative assessment that served to
make the applicant's employment less secure constituted adverse
action for the purposes of section 342(1)(c) of the Fair Work
Act 2009 (Cth) ('the Act').
In April 2009, the applicant was working in Perth as an Licensed
Aircraft Mechanical Engineer. He became concerned that he was not
being paid for overtime and made a complaint to his employer,
International Aviation Safety Association
('IASA'). Following the complaint, IASA
reviewed the applicant's performance. Initially, the applicant
was refused representation by the employer, who later relented and
allowed the Australian Licensed Aircraft Engineers Association to
represent the applicant. Nevertheless, the applicant's
employment was terminated.
Following an unfair dismissal claim, the applicant was
re-instated, but a negative assessment by his employer caused him
to lose his authorisation with Garuda Airlines
('Garuda') and his employment was
The court held that the employer had taken adverse action
against the employee by:
Dismissing the applicant from his employment
Making a Negative Personality Assessment
Delivering the Negative Personality Assessment to Garuda.
The Court drew a causal link between the exercise of relevant
workplace rights on the part of the applicant in relation to
seeking union involvement in his overtime claims and the adverse
action taken by the employer.
Jurisdictional issues: 'workplace instruments'
ASA argued that the case could not proceed because the applicant
was relying on an agreement executed in accordance with the
Workplace Relations Act 1996 (Cth). For this reason, IASA
argued the applicant could not rely on the exercise of a workplace
right under the Act, when the exercise of that right occurred
before the Act took effect on 1 July 2009.
Justice Barker rejected this argument, saying there was 'no
temporal limitation placed by the relevant Act provisions on the
time or period when a 'workplace right', as defined by
the Fair Work Act should have been exercised or enjoyed in the past
or when the conduct that constitutes industrial activity
Justice Barker held that the power of the Court to make
'any order' is wide and
'compensation' is a broad concept. He held that
compensation should be awarded in 'the circumstances of the
case, there being no other substantive remedy that is
Despite the Court recognising that there was no medical evidence
to support any finding that the dismissal caused stress, the Court
accepted that 'hurt and humiliation... was a direct
consequence of the contraventions found' and compensation
for non-economic loss was appropriate.
Justice Barker considered the court's reluctance to provide
damages for a breach of contract which results in hurt and
humiliation, unless the parties to the contract can be taken to
have contemplated such damages for the breach.
Nevertheless, he stated 'as a matter of principle it is
difficult to see why a compensatory financial order cannot be made
in respect of hurt and humiliation.' He held that the
power of the Court under the Act is 'quite
divorced' from this type of contractual consideration and,
as a matter of policy, the Court may give appropriate relief where
contravention is proved.
The Court reasoned that relief in these circumstances helps to
uphold the policy indicated in the Act, that
'contraventions of the freedom of association provisions
should not occur and that appropriate orders should be made to
remedy the contravention of such provisions', and awarded
$85,000 in compensation. The Court also fined IASA $10,000.
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guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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