The Federal Court has awarded compensation for hurt and humiliation in an adverse action ruling related to an employee being negatively assessed by his employer.

The ruling made it clear that action taken by an employer in response to a complaint by an employee made prior to 1 July 2009, is unlawful.

The Court also stated that a negative assessment that served to make the applicant's employment less secure constituted adverse action for the purposes of section 342(1)(c) of the Fair Work Act 2009 (Cth) ('the Act').


In April 2009, the applicant was working in Perth as an Licensed Aircraft Mechanical Engineer. He became concerned that he was not being paid for overtime and made a complaint to his employer, International Aviation Safety Association ('IASA'). Following the complaint, IASA reviewed the applicant's performance. Initially, the applicant was refused representation by the employer, who later relented and allowed the Australian Licensed Aircraft Engineers Association to represent the applicant. Nevertheless, the applicant's employment was terminated.

Following an unfair dismissal claim, the applicant was re-instated, but a negative assessment by his employer caused him to lose his authorisation with Garuda Airlines ('Garuda') and his employment was consequently terminated.

'Adverse action'

The court held that the employer had taken adverse action against the employee by:

  • Dismissing the applicant from his employment
  • Making a Negative Personality Assessment
  • Delivering the Negative Personality Assessment to Garuda.

The Court drew a causal link between the exercise of relevant workplace rights on the part of the applicant in relation to seeking union involvement in his overtime claims and the adverse action taken by the employer.

Jurisdictional issues: 'workplace instruments'

ASA argued that the case could not proceed because the applicant was relying on an agreement executed in accordance with the Workplace Relations Act 1996 (Cth). For this reason, IASA argued the applicant could not rely on the exercise of a workplace right under the Act, when the exercise of that right occurred before the Act took effect on 1 July 2009.

Justice Barker rejected this argument, saying there was 'no temporal limitation placed by the relevant Act provisions on the time or period when a 'workplace right', as defined by the Fair Work Act should have been exercised or enjoyed in the past or when the conduct that constitutes industrial activity occurred.'


Justice Barker held that the power of the Court to make 'any order' is wide and 'compensation' is a broad concept. He held that compensation should be awarded in 'the circumstances of the case, there being no other substantive remedy that is appropriate.'

Despite the Court recognising that there was no medical evidence to support any finding that the dismissal caused stress, the Court accepted that 'hurt and humiliation... was a direct consequence of the contraventions found' and compensation for non-economic loss was appropriate.

Justice Barker considered the court's reluctance to provide damages for a breach of contract which results in hurt and humiliation, unless the parties to the contract can be taken to have contemplated such damages for the breach.

Nevertheless, he stated 'as a matter of principle it is difficult to see why a compensatory financial order cannot be made in respect of hurt and humiliation.' He held that the power of the Court under the Act is 'quite divorced' from this type of contractual consideration and, as a matter of policy, the Court may give appropriate relief where contravention is proved.

The Court reasoned that relief in these circumstances helps to uphold the policy indicated in the Act, that 'contraventions of the freedom of association provisions should not occur and that appropriate orders should be made to remedy the contravention of such provisions', and awarded $85,000 in compensation. The Court also fined IASA $10,000.

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.