The Federal Court of Australia recently rejected a procurement
manager's adverse action claim against its employer Dulux on
the basis that his dismissal was not linked to him having taken
The procurement manager had been working for Dulux for two years
when it acquired another business. A senior manager decided that
the employee's role would necessarily expand as a result of the
acquisition and that the employee did not have the requisite skills
for the expanded role.
Dulux offered the employee another role with an increased
salary. The employee initially rejected the offer and argued that
it was a constructive dismissal. Despite this, he was given a
significant period of time (over 4 weeks) to consider accepting the
role. After this time, the employee was given a final deadline
which he ignored and he also took sick leave on the day.
After receiving no decision by the deadline and without knowing
that the employee was on sick leave, the senior manager terminated
his employment. Meanwhile, the employee's solicitor wrote to
Dulux alleging that Dulux had bullied him into accepting the offer
and had misrepresented his employment to him.
Adverse actions claims can be made where an employee has been
subjected to adverse action (for example, by having their
employment terminated) on the basis that he or she has or has
exercised a workplace right. Protected rights include the ability
to take personal leave and enjoy a safe working environment.
Importantly it is the enjoyment of these rights that is
protected by law rather than the right to make a complaint
that the rights have been breached.
The basis of the employee's adverse action claim was that he
had been terminated for exercising his right to a "working
environment that was safe and without risk to health."
The employee also claimed that termination was in breach of
section 352 of the Fair Work Act on the basis that the termination
was on the ground of temporary absence from work due to illness or
injury. However, the court found that while the employer was aware
the employee was absent, it did not know that the absence was due
to illness or injury and therefore this was not a reason for the
The court also found that the termination was not due to the
employee having exercised his workplace right to a "working
environment that was safe and without risk to health,"
concluding that the nature of the workplace benefit accorded by
Victorian OHS legislation is the capacity to enjoy a safe working
environment, and the manager needed to allege that it was the
"enjoyment of that benefit, not the making of a complaint
about its denial" (by way of his solicitor's letter) that
was the operative reason for his dismissal.
The Court remarked that the applicant could have made an unfair
dismissal claim on the basis that he was constructively dismissed,
but given that the Applicant had made an adverse action claim, the
Court was not required to consider the fairness or unfairness of
the dismissal in that context.
The case highlights the need for careful consideration of
policies and procedures when altering roles of employees.
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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