Australia: Real reasons for adverse action – is the law changing?

Last Updated: 3 September 2017
Article by Charles Power and Ben McKinley

Most Read Contributor in Australia, August 2018

A recent Federal Circuit Court decision has highlighted the difficulty of determining the real reasons for decisions in adverse action cases.

In Australian Rail, Tram and Bus Industry Union v Australian Western Railroad Pty Ltdi, Lucev J found Australian Western Railroad (AWR) took unlawful adverse action against an employee by cancelling and failing to reinstate training for that employee.

Facts

The employee was employed by AWR as a Locomotive Driver. Around March 2012, he applied for, but was unsuccessful in obtaining, a Tutor Driver position. The employee was rejected because AWR did not consider he had the required commitment or attitude.

In July 2012 the employee requested training for the Operations Supervisor role. Despite the concerns about the employee's commitment, which AWR was monitoring, in October 2012 it agreed to provide Operations Supervisor training to the employee on 21 and 26 October 2012.

On 20 October 2012, the employee was rostered to work a 12 hour shift from 3pm. Approximately four hours before the commencement of his shift, the employee was informed his shift had been delayed by three hours (known as a put back shift).

The employee told AWR he would be unable to work the put back shift because he was caring for his infant child until the commencement of his shift, meaning he would be unable to sufficiently rest and therefore be fatigued, or become fatigued by the end of the put back shift. AWR had numerous policies regarding fatigue management and safety. The employee agreed to take carer's leave to cover his absence, which was not disapproved by his manager.

On 21 October 2012, the employee undertook the scheduled Operations Supervisor training. Between 22 and 25 October 2012, the manager was directed to cancel the employee's second scheduled training session. The manager's evidence was he cancelled the training because he received feedback from operational staff about the employee's lack of commitment and poor attitude. However, the weight of that evidence was reduced because none of those operation staff members were called to give evidence.

The manager, who was the relevant decision maker for the purposes of the alleged adverse action, gave evidence that:

  • he did not consider the employee's explanation that he could not work the put back shift due to him being or becoming fatigued was acceptable because the employee was given sufficient notice of the put back shift
  • he cancelled the training because he did not believe the employee had displayed an appropriate level of commitment or change in attitude
  • the cancellation of training was not solely due to the employee's refusal to work the put back shift.

Findings

The court determined that in taking carer's leave instead of working the put back shift because he was or would be too fatigued to work due to his family caring responsibilities, the employee exercised or proposed to exercise a workplace right to:

  1. take paid carer's leave; and
  2. utilise a system of work so he was not exposed to hazards or take responsibility for his own health and safety pursuant to the Occupational Safety and Health Act 1984 (WA).

In cancelling and not reinstating the Operations Supervisor training, the court held AWR engaged in adverse action by injuring the employee in his employment and prejudicially altering his position because of the existence and exercise of those workplace rights. It did not consider it discriminated between the employee and other employees because of the existence or exercise of the workplace rights.

Lucev J found the manager was aware that the employee did not work the put back shift because of the employee's alleged fatigue and responsibilities as a carer, and those reasons were a reasonable explanation for not working the put back shift. He therefore found that, although the decision to cancel and not reinstate that Operations Supervisor training was partly because of the manager's belief that the employee lacked commitment and had a poor attitude, the substantial and operative reason was the employee's "failure to work because of alleged fatigue and the existence, and exercising of workplace rights in relation to the fatigue and the carer's leave, which [the manager] ultimately, and wrongly in the Court's view, decided not to accept as being genuine".

This is despite the fact there was no evidence the manager had ever refused or restricted any legal entitlement to carer's or parental leave, and that the manager had formed a view that the employee lacked commitment and had a poor attitude prior to the employee's refusal to work the put back shift.

Comment

The finding that the manager's decision was for a prohibited reason appears to have been heavily influenced by the fact he did not disapprove of the employee's absence being characterised as carer's leave, even after receiving the feedback from the operational staff. The judge ultimately found that it was wrong that the manager's belief that the employee's excuse for not working was disingenuous.

However, this finding arguably goes against the law in relation to adverse action cases. The decision of Anglo Coalii suggests the statutory presumption will still be discharged if there is a factually mistaken reason for adverse action being taken, i.e. it is the decision maker's state of mind which is the relevant factor, even if that state of mind contains a factual mistake. However, a mistake of law does not rebut the presumption. In Anglo Coal, the employer was found not to have engaged in unlawful adverse action when it dismissed an employee because the relevant decision-maker believed the employee had dishonestly taken personal leave (even though he was genuinely sick). The adverse action was therefore not unlawful because the dismissal was because of the employer's belief the employee was being dishonest. The same can be said about the present case where the manager cancelled and did not reinstate training (i.e. took adverse action) because he believed the employee refused to work the put back shift by reason of his poor attitude and lack of commitment.

Lessons for employers

Despite existing in its current form for over seven years, decisions arising out of the general protections provisions of the Fair Work Act 2009 (Cth) are disposed to uncertain interpretations. Part of this uncertainty arises out of the reverse onus which requires judges to determine the credibility of decision makers and the real reasons for their decisions. This can be a difficult task.

It also serves as a reminder that seemingly inconsequential decisions, for example in the above case failing to substitute annual leave for carer's leave, can have a substantial impact on your business. It is also important to make and retain notes of decisions which may corroborate your decision-making process.

Footnotes

i [2017] FCCA 1954.

ii Construction, Forestry, Mining and Energy Union v Anglo Coal (Dawson Services) Pty Ltd (2015) 238 FCR 273.

This publication does not deal with every important topic or change in law and is not intended to be relied upon as a substitute for legal or other advice that may be relevant to the reader's specific circumstances. If you have found this publication of interest and would like to know more or wish to obtain legal advice relevant to your circumstances please contact one of the named individuals listed.

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