Stephens v Australian Postal Corporation  FCCA 1988 (27 November 2013)
Employers need to remember that adverse action claims can be brought by prospective employees including former employees in respect to their prospective re-employment.
In this case, a former employee who successfully made an adverse action claim against Australia Post last year was unable to prove the organisation took adverse action against him a second time when it did not later re-employ him. The Federal Circuit Court found there was no adverse action as Australia Post did not in fact refuse his employment and that his failure to be re-employed was not because of his prior proceedings or his physical disability.
Mr Stephens was employed by Australia Post as a part-time driver/sorter on a fixed term contract. Whilst performing work, Mr Stephens sustained a back injury and made a workers' compensation claim. 9 working days prior to the expiry of his fixed term of employment, Mr Stephens was dismissed. Mr Stephens then successfully brought an adverse claim against Australia Post for terminating his employment because of his workplace right in claiming workers' compensation.
Australia Post was ordered to pay $25,000 to Mr Stephens and to reinstate his employment for at least the period which remained under his fixed term contract. Australia Post chose to reinstate him for the 9 remaining working days only.
Just two months after his reinstated employment came to an end, Mr Stephens sought to apply for a driver/sorter position with Australia Post via its website. However, due to a prior application by Mr Stephens that was still on the system, he was unable to make a new application.
Mr Stephens contacted Mr Lee Hinton, the Indigenous Employment Consultant, seeking to apply for a driver/sorter position and also referred to his prior legal proceedings. Mr Hinton sought the advice of a Senior Workplace Relations Advisor who advised him, "let's just get him to submit an application and we'll process him like we would anyone else".
Mr Hinton rectified the issue with the online application and sent two emails to Mr Stephens advising him that he could now apply online for positions. When Mr Hinton received Mr Stephens' application for a driver/sorter position, he noticed his contact details had been incorrectly completed and his application was therefore unable to be progressed. Mr Hinton again raised this promptly with Mr Stephens. Mr Stephens then corrected his details but submitted an application for a different position of a Postal Transport Officer (PTO). By the time this application had been submitted, all PTO positions had already been filled. Mr Hinton advised Mr Stephens by letter that there were no positions available but that he would be considered for all suitable vacancies.
Mr Stephens then filed an adverse action claim alleging Australia Post had refused to employ him because of the prior proceedings brought by him.
No adverse action found
Judge Emmett found there were two key questions:
- Had a prima facie case been established by Mr Stephens – that is, had Australia Post refused to employ him?
- If so, was it for a prohibited reason – that is, had employment been refused because of prior proceedings by Mr Stephens?
The Court found that as at the date that Mr Stephens had submitted his proper application for the PTO role, there were no vacancies and that Australia Post did not therefore refuse his employment. As such, no adverse action had been taken. However, even if adverse action had been established, the Court found that it could not have been for a prohibited reason as the relevant decision maker for recruiting PTOs was unaware at all times of the prior disputes and proceedings or of Mr Stephens' physical disability which he also alleged was a reason for why he was not re-employed.
Important reminders for all employers
- The systematic application of Australia Post's recruitment processes best enabled it to defeat the allegations made by Mr Stephens in this case. Important to being able to do so was both the diligence in following the system as well as the timeliness in responding to any queries raised by Mr Stephens. These are valid lessons for all employers to take on board when dealing with job applicants who may have protected attributes of any nature and/or dealing with job applicants in similar circumstances to that of Mr Stephens, that is, who have previously exercised a workplace right against the employer.
- This case is also a timely reminder that just because an employee has exercised a workplace right against a former employer, including by litigating against the employer, does not mean that the employer can automatically exclude them from any future job application by reason of this fact. This position applies even if the relevant Court or Tribunal rejected reinstatement in the proceedings on the basis that it was not appropriate. This is because circumstances may have changed which mean a relationship breakdown is no longer an issue. Those circumstances could include, for example, a change in personnel within the business and/or a change in the location where the employee worked previously.
- The decision also serves as a broader and very important reminder to all employers that adverse action claims can be brought by prospective employees and not just by current employees or former employees in respect to their dismissal. Care needs to be taken at all stages of the recruitment process to ensure due process is followed with all job applicants. Any decision not to employ or otherwise adversely treat a prospective employee must not and must not be seen to be for a prohibited reason such as their involvement or membership with a union or on discriminatory grounds.
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.