Most Read Contributor in Australia, September 2016
In a typical general protections claim made by an employee under
the Fair Work Act, the employee alleges that the employer took
adverse action against him or her because of a proscribed reason
e.g. the employee exercised a workplace right. Once this allegation
is made, the employer has the onus of proving on the balance of
probabilities that the action was not taken for
the proscribed reason. If the employer fails to discharge the onus,
the Court will presume that the action was taken
for the proscribed reason.
A recent decision highlights the importance for employers in
defending general protections claims to ensure that the key
decision-maker gives evidence in the case as to the true reason for
In Burke v Serco Pty Ltd ( FMCA 1134 (29 November
2012)) a client services officer was dismissed without being given
a reason for dismissal. The employee claimed the reason was because
he made complaints about the way in which Serco exposed him to an
unsafe working environment and unsafe work practices, and because
he made a workers' compensation claim.
The Court accepted that the employee had made those complaints
prior to being dismissed. It also noted that if the making of those
complaints was a factor in the decision to dismiss, the company
would have contravened the general protection provisions of the
Fair Work Act.
The Court noted that the Act required it to presume that Serco
took the alleged adverse action – dismissing the employee -
for the reasons claimed by the employee, unless Serco proved that
it did not take dismiss the employee for those
Ordinarily in a case such as this, evidence about the reason
that an employee was dismissed is given by the person who made the
dismissal decision. However Serco did not call as a witness any
person with personal knowledge of the reasons for the dismissal.
Therefore, the Court concluded that Serco had not discharged the
onus upon it to show that it did not dismiss the employee because
he had made the complaints about safety and lodged the workers'
compensation claim. As a result the Court ruled that Serco
had contravened s.340 of the Fair Work
Act 2009 in that it has taken adverse action against the
employee because he exercised a workplace right to make those
complaints and lodge the WorkCover claim.
The lessons for employers from this decision are that if they
are contemplating taking an action that may be detrimental to any
of their employees they need to consider:
Who will make the decision to take the action?
What are the grounds for taking the action?
Are the grounds unlawful?
Will the decision-maker be able to give evidence as to the real
reason for taking the action?
Is there any other evidence that would erode the credibility of
the decision-maker's evidence i.e. documents or e-mails
suggesting different factors motivated the decision-maker, failure
to follow internal processes for no explicable reason, or a
different (or no) reason given to the employee for taking the
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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