A recent decision of the Federal Circuit Court provides a reminder that workplace probationary periods do not serve as a protective shield for employers from unlawful conduct and that even external advisers or consultants can fall within the bounds of the accessorial liability provisions.
In the case of Myers v Arenco Holdings Pty Ltd & Ors, Ms Myers was a yoga instructor at OM Yoga Studios (the trading name of Arenco Holdings Pty Ltd). She started in early April 2018. By early July 2018, the business was looking to grow and Ms Myers met with her supervisor and an external HR adviser who had been engaged by the business, to discuss her preferred teaching schedules and rostering. At the end of this meeting, the external HR adviser requested that Ms Myers put forward in writing her ideal scenario for teaching. The employer had previously expressed satisfaction with Ms Myers' performance and stated during this meeting that "we want you to be happy here at OM". Further, the supervisor had stated that despite the upcoming expansion and possible change to rosters, Ms Myers would not be financially worse off and that effectively, Ms Myers would suffer no detriment as a result of any change.
While preparing her ideal scenario response, Ms Myers reviewed the Fitness Industry Award 2010 and identified a number of concerns about her current rate of pay and entitlements, compared to those under the Award. Ms Myers sent a text message to her supervisor stating that she had identified some issues under the Award entitlements and wanted to discuss these before finalising her schedule. The supervisor did not respond to the text message.
The following day Ms Myers arrived to work her regular shift and was informed that her permanent part-time employment had been terminated, but that she could continue instructing yoga classes as an independent contractor. Ms Myers was told what her hourly rate would be as a contractor and realised she would be financially worse off under this new arrangement. As such, Ms Myers refused the offer and was told that she would no longer be offered any shifts at OM Yoga Studios.
In evidence it was accepted that the supervisor told Ms Myers that "because you have been employed one day less than three months and are still on probation, OM Yoga can do whatever it wants".
At trial the employer suggested that Ms Myers had a poor work ethic and numerous performance issues which it had attempted to address. However, there were no records to support these claims, and numerous Facebook posts and private text messages which appeared to directly contradict this position. Consequently, the Court rejected this argument. The Court noted that "the texts and Facebook posts clearly do not reflect the level of work dissatisfaction ... which was said to have existed since the commencement of employment in April 2018."
The Court found that the employer, through the actions of both the supervisor and the external HR consultant, sought to portray Ms Myers' termination as being based on performance concerns, whereas it was in actual fact as a result of Ms Myers pointing out that she had been underpaid and that the Award had not been followed.
Therefore, the employer had taken adverse action against Ms Myers for attempting to enforce a workplace right in contravention of section 340 of the Fair Work Act. Further, the Court found that both the supervisor and the external HR adviser were each accessorily liable for the contravention pursuant to section 550 of the Fair Work Act.
The Court found that Ms Myers was entitled to compensation for both the financial loss suffered and the hurt and distress caused, and that all three respondents (Arenco Holdings Pty Ltd, the supervisor and the external HR adviser) were liable to pecuniary penalties for their involvement. A determination is yet to be made regarding the amount of compensation awarded and penalties imposed.
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