In Eriksson v The Commonwealth  FMCA 964,
the court considered whether the termination of an employee's
employment constituted adverse action.
Meeli Kersti Eriksson (the Employee) was employed by the
Department of Health and Ageing (the department).
In 2002, the Employee suffered from a work related injury and
was on restricted duties until 2006 (with some periods of total
incapacity), and then certified as unfit for all work from 1
After unsuccessful attempts to return the Employee to the
workplace, the Department sought to have the employee retired on
the ground of medical invalidity, which required an Invalidity
Retirement Certificate to be issued by Australia Reward Investment
Alliance (ARIAa), as Trustee of the Public Sector Superannuation
Scheme. On the basis of medical opinion obtained by ARIA, the
Invalidity Retirement Certificate was granted in 2007.
The Employee was subsequently notified that her employment would
be terminated in accordance with section 29(3)(d) of the Public
Service Act 1999 (CTH) (PS Act).
Section 29(3) of the PS Act provides:
For an ongoing APS employee, the following are the only
grounds for termination:
(d) inability to perform duties because of physical or
The Employee sought reconsideration of some of the procedural
decisions preceding termination and the department delayed the
termination to allow her time to present new evidence on three
occasions. Notwithstanding the department's decision to delay a
decision to terminate employment, the employee failed to present
the required additional evidence.
The Employee's employment was ultimately terminated with
effect from 8 January 2010.
The Employee made an adverse action claim to Fair Work australia
pursuant to the Fair Work Act 2009 (CTH) (fW act) on the
basis that her employment had been terminated because of a
workplace right (section 341) and/or her disability (section
The Employee claimed that she had exercised her workplace right
seek an assessment to undertake a rehabilitation program,
have the retirement decision reconsidered on the basis that she
had become fit to return to work.
In this case, Federal Magistrate Burnett found that the
termination of the employee's employment did not constitute
The action to terminate was not taken "because of" the
employee's workplace right to request an assessment to
undertake a rehabilitation program under the Safety,
Rehabilitation & Compensation Act 1988 (CTH) (SRC Act) or
her right to request reconsideration of the invalidity retirement
This was clear on the facts, as the court found that the history
of events demonstrated that the termination decision made by the
department predated any of the actions taken by the employee in
pursuing her workplace rights, particularly as the department had
notified the employee in early 2007 that it was intending to retire
her on grounds of invalidity.
Importantly, his Honour noted that:
"Nothing changed between the time the respondent first
decided to "retire" the applicant on invalidity grounds
and the actual dismissal giving effect to that
Further, the employee's request to obtain a rehabilitation
program under the SRC Act was only sought after the decision to
terminate employment had already been made.
This is a useful decision that demonstrates that a proper
process undertaken to manage and deal with long term employee
issues, including absence from work, will not likely result in
It is important for Departments and agencies to:
follow procedures and policies,
ensure that employment decisions are made for reasons unrelated
to what might be claimed to be a "workplace right",
ensure that there are records evidencing when decisions are
made for the management of employees and for what reasons.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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Long experience representing many of Australia's leading employers has taught us that in employment litigation the identity of an employee's representative is a major factor in how employee litigation runs.
Australian employees receive certain entitlements (such as annual leave and superannuation) where contractors do not.
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