In a recent decision of the Full Federal Court in CFMEU v
Endeavour Coal Pty Ltd FCAFC 76 the employer's removal of
an employee from the weekend work roster because of the
employee's unreliable and unpredictable work attendance due to
personal/carer's leave did not constitute a breach of the
general protections provisions of the Fair Work Act.
The employee was removed from the weekend roster (which paid
higher penalties) and placed on the weekly (Monday to Friday)
roster after taking about 29 days of personal/carer's leave
over an approximate 18 month period. The employer maintained that
the reason for removing the employee from the weekend roster was
due to the employee's unreliable and unpredictable attendance
at work, which impacted on the operations at the mine.
Judge Cameron in the Federal Circuit Court accepted that the
removal of the employee from the weekend roster was 'adverse
action' under the Fair Work Act. However, his Honour
ruled that the employer had not contravened the general protections
provisions because the adverse action was not taken because the
employee had exercised a workplace right to take
personal/carer's leave. Instead, his Honour accepted the
employer's assertion that the employee had been removed from
the weekend roster because his absences meant that he had become
unreliable and unpredictable, not because he had taken
Upheld on appeal
The Union appealed Judge Cameron's decision to the Full
Federal Court. In a 2 to 1 majority, the Full Court upheld Judge
Cameron's decision, noting that the employer's decision to
remove the employee from the weekend roster did not turn on the
fact that the employee had taken personal/carer's leave and was
because the employee's attendance at work was unreliable and
In his dissent, Justice Bromberg rejected the majority's
reasoning. His Honour held that the facts at trial supported the
conclusion that the adverse action against the employee was taken
by the employer because the employee had exercised a workplace
right (to take personal/carer's leave) and that as a
consequence of him exercising his workplace right he was deemed
unreliable and unpredictable.
The Union is seeking special leave from the High Court to appeal
the Full Federal Court decision.
This is an important decision for employers attempting to
legitimately manage excessive absenteeism.
Winner – EOWA Employer of Choice for Women Citation 2009,
2010, 2011 and 2012
Winner – ALB Gold Employer of Choice 2011 and 2012
Finalist – ALB Australasian Law Awards 2008, 2010, 2011 and
2012 (Best Brisbane Firm)
Winner – BRW Client Choice Awards 2009 and 2010 - Best
Australian Law Firm (revenue less than $50m)
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An employee that refused a reasonable offer of settlement was ordered by the FWC to pay his ex-employer's legal costs.
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