Decisions on adverse action in breach of the general protections
provisions of the Fair Work Act have reinforced the importance of
the evidence of the decision maker as to the matters which
were operative in his or her mind at the time of making the
decision to terminate employment or take whatever other action is
alleged to be "adverse action".
In a case involving a lawyer in the Victorian Office of Public
Prosecutions (Victoria v Grant) , the lawyer's
employment was terminated for disclosing confidential information,
poor performance, disobeying directions to attend Court and other
conduct issues. At the same time, the lawyer had been grappling
with depression. The Federal Circuit Court awarded over $100,000 in
damages and penalties, because the judge felt that the conduct and
the depression were completely interwoven, and that this should
have been apparent to the manager.
However, the manager gave credible evidence, which was not
disputed, that he was concerned only with the poor conduct, and
that the illness played no part in the decision to terminate
employment. On appeal, the award of damages and penalty was
overturned, because the evidence of the matters taken into account
by the employer was effectively unchallenged and so the depression
was not in fact part of the decision making process of the
employer, whereas the misconduct was.
The evidence that can be given by the decision maker is
therefore critical. It is not final, because other competing
evidence which shows that inappropriate matters were indeed taken
into account will undermine evidence from decision maker that the
inadmissible reasons were not considered. However, clear evidence
from the decision-maker should assist greatly in defending an
adverse action claim.
Another decision emphasises that the evidence must also exclude
illegitimate reasons for the decision. Even if the illegitimate
reason for termination is only one of a number of reasons, that is
enough for a finding that adverse action occurred.
In a case concerning termination of a university professor's
position (Bessant v RMIT), the Vice Chancellor gave
evidence that the reason for termination was "primarily
financial" – but that left open the possibility that
other reasons played a part and was insufficient to preclude
Professor Bessant's complaint about her departmental head as
one of the reasons for termination of her employment. As she has a
"workplace right" to make that complaint, failure to
exclude that partial reason resulted in RMIT losing the case.
"Adverse action" or "general protections"
claims under the Fair Work Act can be tricky to understand and to
contest. In any situation where an employee could argue that some
exercise of a workplace right, or some sort of discriminatory
behaviour, is behind the decision to terminate employment or
otherwise alter work conditions in a way that adversely affects the
employee, clarity about the reasons for the action being taking is
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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