Adverse action; why was it taken?

“Some general protections’ cases are very complex forensically. Others are not. Here is an extract from a recent decision of the Federal Circuit Court where the simple issue was whether or not the exercise of a workplace right played any role in the decision of an employer to dismiss an employee. The trial judge simply found that it did not.

Consideration

  1. I accept the evidence of the respondent in this case, and in particular the evidence of Mr Soos, that the termination of employment was not because of the exercise of any workplace right by the applicant, including him forwarding a letter on 3 May 2018.
  1. Section 341 of the FW Act provides:

Meaning of a workplace right

(1) A person has a workplace right if the person:

(a) is entitled to the benefit of, or has a role or responsibility under,a workplace law, workplace instrument or order made by an industrial body; or

(b) is able to initiate, or participate in, a process or proceedings under a workplace law or workplace instrument; or

(c) is able to make a complaint or inquiry:

(i) to a person or body having the capacity under a workplace law to seek compliance with that law or a workplace instrument; or

(ii) if the person is an employee–in relation to his or her employment.

  1. In relation to adverse action, section 342 of the FW Act provides relevantly:
Meaning of adverse action
Item Column 1

Adverse action is taken by …

Column 2

if …

1 an employer against an employee the employer:

(a) dismisses the employee; or

(b) injures the employee in his or her employment; or

(c)  alters the position of the employee to the employee’s prejudice; or

(d) discriminates between the employee and other employees of the employer.

 

  1. In Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32; (2012) 248 CLR 500 at [44] per French CJ and Crennan J, the central question for the Court was ‘why was the adverse action taken?’
  2. In Victoria (Office of Public Prosecutions) v Grant [2014] FCAFC 184, Tracey and Buchanan JJ state at [32]:

As the trial judge recognised the leading authority on the operation of ss 360 and 361 of the Fair Work Act in the context of Pt 3-1 of that Act (which includes s 351) is Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500; 220 IR 445. The principles which informed this decision were recently reaffirmed by a majority of the High Court in Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (2014) 253 CLR 243; 245 IR 354. Relevantly, these authorities establish that:

  • The central question to be determined is one of fact. It is: “Why was the adverse action taken?”
  • That question is to be answered having regard to all the facts established in the proceeding.
  • The Court is concerned to determine the actual reason or reasons which motivated the decision-maker. The Court is not required to determine whether some proscribed reason had subconsciously influenced the decision-maker. Nor should such an enquiry be made.
  • It will be “extremely difficult to displace the statutory presumption in s 361 if no direct testimony is given by the decision-maker acting on behalf of the employer”.
  • Even if the decision-maker gives evidence that he or she acted solely for non-proscribed reasons other evidence (including contradictory evidence given by the decision-maker) may render such assertions unreliable.
  • If, however, the decision-maker’s testimony is accepted as reliable it will be capable of discharging the burden imposed on the employer by s 361.
  1. In this case, I accept that there was adverse action taken by the respondent in the form of the termination of the applicant’s employment. However I do not find that the action was taken in breach of section 341 of the FW Act.
  2. Mr Soos gave direct testimony of his reasons for the termination of the applicant’s employment and I accept that the reasons for the termination of employment were those as set out in the letter of termination.
  3. I also accept that, over a period of time, there had been significant issues with the applicant’s performance in the workplace and, in particular, his failure to follow instructions and directions provided to him by Ms Cleary.
  4. I accept that Mr Soos did not terminate the applicant’s employment for a reason that included that the applicant was exercising a workplace right when he took a break and slept on a client’s outdoor furniture or because the applicant raised a complaint regarding Ms Cleary.
  5. The respondent has discharged the reverse onus of proof which arises by reason of section 361 of the FW Act.
  6. In the course of the hearing, Mr Martires was questioned about an email that had been forwarded on 24 March 2020 to a Canadian director of the respondent under the name “Edmund Martirez”, noting the only difference between the applicant’s name and the name in the email was the letter Z. That email repeats many of the allegations that are made in the course of the affidavits filed by the applicant in this proceeding. There are details of the proceeding which would only be known to the applicant or the respondent. The applicant did not suggest that anyone from the respondent had created and forwarded the document. The document included statements calculated to embarrass Mr Soos and Ms Cleary.
  7. Attached to that email was an email from the Australian Human Rights Commission (‘AHRC’) that purported to be from a senior investigator/conciliator from that organisation based in Sydney addressed to Mr Martires. The email included the email signature plate of the senior investigator. That purported email provides as follows:

Dear Edmund, good day. Regarding our phone call discussion this morning, as discussed, the Commission has accepted your complaint against Endura Paints Proprietary Limited. In the Commission’s view. Endura Company has committed many violation of your human rights. Thus, we have the duty to investigate and file the appropriate court proceedings towards the respondent.

AHRC is now conducting its thorough investigation and doing the necessary steps towards a complete resolution on this case matter. We are also in coordination with our Canadian Human Rights Commission counterpart for them to file the appropriate case against Endura Company in Canada for their human rights violation which the CHRC has a jurisdiction. I will inform you of further actions. I will inform you of further actions by the President’s delegate who acts and decides on the issues on this case matter.

  1. The applicant disclaimed any knowledge of the email purporting to have been sent from the AHRC and was adamant that he had not forwarded that email or was responsible in any way for producing that email.
  2. The email has plainly been concocted by someone other than any person from the AHRC. Whilst I am not required to make a definitive determination on this point, I think it is more probable than not that the applicant is in fact the author of these documents and forwarded the documents to the parent company in Canada in order to seek to produce a response from the company to encourage settlement of the proceeding in the applicant’s favour.
  3. This is a case where there are matters of credit raised and where there is a difference between the accounts given by the applicant and those given by the witnesses for the respondent.
  4. I accept the evidence of the witnesses for the respondent. Where there have been errors in the dates provided in the respondent’s affidavit material, I do not regard those errors as evidence of deceit or an attempt to mislead the Court and those errors have been explained satisfactorily in the affidavit material.
  5. I do not accept that the applicant has established that he had a workplace right to take a particular break when he chose to recline on a customer’s outdoor furniture on 4 May 2018. I also do not accept that the existence of that right (or the exercise of the right in any way) informed the respondent’s decision to terminate the applicant’s employment.
  6. Furthermore, I do not accept that the correspondence which was forwarded by the applicant to the company’s director formed any reason for the termination of employment.
  7. For these reasons, I dismiss the application.”

 

MARTIRES v ENDURA PAINTS PTY LTD [2020] FCCA 717 delivered 20 April 2020 per McNab J