30 October 2024
7 min read
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Two recent Federal Court cases demonstrate that employers failing to identify decision makers involved in an adverse action claim could be a deal breaker in defending a general protections claim.
Under Part 3-1 of the Fair Work Act 2009 (Cth) (FW Act), the general protections scheme provides wide-ranging protections against adverse or unfair treatment because of prohibited reasons such as:
Where an employee alleges that their employer has taken adverse action against them, section 361 of the FW Act operates so that it is presumed that the adverse action was taken because of the prohibited reason(s) unless the employer proves otherwise.
Under the provision, the employer has the onus of proving that the pleaded prohibited reason or intention for taking the action was not a substantial or operative part of its reasons for engaging in the conduct or action. In practical terms, the employer is required to establish:
Discharging the reverse onus in a general protections claim can be challenging for employers, especially when multiple ‘decision makers’ are involved in an employee’s dismissal. The court is not confined to the considerations of the ultimate decision maker on paper. That is, if the decision maker has relied on information, a recommendation or assessment from others to take adverse action, the reasons given by those individuals must also be identified and defended to show they were not motivated by a prohibited reason.
Failure to identify and call all relevant ‘decision makers’ can be fatal to discharging the reverse onus.
Atkins v North Australian Aboriginal Justice Agency Ltd [2024] FCA 686
In this case, the applicant was the Chief Executive Officer (CEO) of the respondent. During her employment, she exercised a workplace right by making a complaint to the respondent’s board of directors (Board) in November 2022, which included several allegations regarding the performance and conduct of the respondent’s Chief Financial Officer (CFO). The applicant’s appointment as CEO was terminated by resolution of the Board in January 2023 before being dismissed via a letter in February 2023.
The applicant alleged that there were five adverse actions taken against her:
In determining liability, Charlesworth J was satisfied that each of the above actions taken against the applicant met the ‘adverse actions’ definition in the FW Act.
In respect to the respondent engaging BDO to investigate the alleged misconduct of the applicant, the respondent argued that BDO was engaged due to concerns from the directors that the applicant had engaged in misconduct, which adversely affected the respondent’s financial position and reputation. These concerns arose after the applicant made her complaint, however, there were no connections with the applicant’s complaint.
Justice Charlesworth found the following evidence presented by the respondent to be vague and variable:
Her Honour found that there was evidence that the CFO had a substantial role in the above processes and was involved in communications relating to the applicant’s employment. Her Honour noted that the CFO was not called to explain the extent of their involvement and that the evidence does not otherwise provide an explanation for the involvement that would assist the respondent’s case.
In handing down the decision, Justice Charlesworth stated that:
Pilbrow v University of Melbourne [2024] FCA 1140
The applicant in this case contended that she made various complaints to the respondent who then took adverse action against her by accusing her of serious misconduct, making her position redundant and dismissing her on the grounds of redundancy.
Both the applicant and respondent agreed that the applicant exercised various workplace rights and that the respondent engaged in four adverse actions, namely:
The issue was whether any of the above adverse actions were taken because of one or more workplace rights exercised by the applicant. At first instance, the primary judge dismissed the applicant’s general protections application, except for the claim relating to the final written warning issued to her.
On appeal, Snaden J dismissed several grounds of the appeal. However, in respect to the appeal ground relating to the adverse action of alleging serious misconduct against the applicant, his Honour observed that the neither party had clearly identified which employees or agents of the respondent were involved in putting the allegation of serious misconduct to the applicant in the way that it did.
Justice Snaden opined this to be a matter of some significance and since the respondent admitted to the adverse action, its successful defence relied on proving two things:
Upon reviewing the evidence, Snaden J found “considerable—indeed, I think, insurmountable—uncertainty” about who within the respondent decided to make the serious misconduct allegation, including because the decision appeared to be handled by the respondent’s human resources team, yet the evidence did not identify who, within that team, was relied upon to that end.
As a consequence, Snaden J held that the primary judge was wrong to find that the respondent had discharged the reverse onus with respect to the serious misconduct allegation in circumstances where the particular decision maker or decision makers were not identified.
When defending a general protections claim, it is crucial to consider who should provide evidence – including individuals involved in the decision-making process who may have influenced the ultimate decision. Failure to do so may result in a court finding that the reverse onus has not been discharged.
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Disclaimer
The information in this article is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, we do not guarantee that the information in this article is accurate at the date it is received or that it will continue to be accurate in the future.
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