General protections; adverse action involving a dismissal

The following is an extract from a recent decision of the Federal Circuit Court of Australia which explains in plain language the principles at play in a general protections case involving an allegation of a dismissal because of the exercise of a workplace right or rights, and the evidentiary issues and findings which ultimately lead the judge to dismiss the claim.

“Principles

  1. I have described elsewhere the elements of a cause of action based on an alleged contravention of s.340 of the FW Act, and some of the relevant principles that apply to such cause of action.[66] For the convenience of the parties, however, I will repeat here what I have said elsewhere.

[66] Fair Work Ombudsman v A to Z Catering Solution Pty Limited & Anor (No.2) [2018] FCCA 2299, at [256]-[252]

  1. Subsection 340(1) of the FW Act provides:

A person must not take adverse action against another person:

(a)           because the other person:

(i)           has a workplace right; or

(ii)          has, or has not, exercised a workplace right; or

(iii)         proposes or proposes not to, or has at any time proposed or proposed not to, exercise a workplace right; or

(b)          to prevent the exercise of a workplace right by the other person.

  1. Three matters must be established before a person will be held to have contravened s.340 of the FW Act. First, the person has taken “adverse action against another person”. That expression is defined in a table contained in s.342(1) of the FW Act which identifies in one column the persons by whom and against whom adverse action must be taken, and, in another column, the conduct that, if taken by and against such persons, constitutes adverse action. For the purposes of these proceedings, the relevant person who must take the adverse action is “an employer”, and the person against whom the employer takes the adverse action must be “an employee”; and the employer takes “adverse action” if 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. The expression “dismisses the employee” means the repudiation by the employer of the employment contract, whether or not the employee accepts the repudiation.[67] The expression “injures the employee in his or her employment” refers to a deprivation of one of the more immediate practical incidents of an employee’s employment, such as loss of pay or reduction in rank.[68] And the expression “alters the position of the employee to the employee’s prejudice” means conduct that results in the “adverse affection of, or a deterioration in, the advantages enjoyed by” an employee before the action was taken.[69]

[67] Director of The Fair Work Building Industry Inspectorate v Baulderstone Pty Ltd & Ors [2014] FCCA 721 at [29]

[68] Director of The Fair Work Building Industry Inspectorate v Baulderstone Pty Ltd & Ors [2014] FCCA 721 at [30]referring to Childs v Metropolitan Transport Trust (1981) 29 AILR 24 (Smithers J)

[69] Director of The Fair Work Building Industry Inspectorate v Baulderstone Pty Ltd & Ors [2014] FCCA 721 at [32]referring to Community and Public Sector Union v Telstra Corporation Ltd [2001] FCA 267; (2001) 107 FCR 93 at 100 ([17]) (Black CJ, Ryan and Merkel JJ).

  1. The second matter that must be established is that the employee against whom the employer has taken adverse action has, among other things, exercised a “workplace right”. Under s.341(1) of the FW Act a person has a “workplace right” if, among other things, the person, being an employee, “is able to make a complaint . . . in relation to his or her employment”. The ordinary meaning of the word “complaint” is a statement expressing a grievance or a finding of fault; and an expression of grievance or accusation need not be factually correct, substantiated or ultimately made out in order to constitute a complaint within the meaning of s.341(1)(c)(ii) of the Act.[70]

[70] Shea v TRUenergy Services Pty Ltd (No.6) [2014] FCA 271 at [600]

  1. The third matter that must be established is that the employer took the adverse action for a particular reason, or for reasons that included a particular reason.[71] That requirement arises from the presence of the word “because”.[72]Section 340(1) of the FW Act prohibits a person from taking adverse action “because” a person has a “workplace right”, or “because” the person has exercised, or has not exercised, or proposes to exercise, or proposes not to exercise, such a right. Further, where the particular reason is one of a number of reasons for which the adverse action is taken, the particular reason must be “a “substantial and operative factor” as to constitute a “reason”, potentially amongst many reasons”,[73] or must be an “operative or immediate reason for the action”.[74]

[71] FW Act, s.360

[72] Director of The Fair Work Building Industry Inspectorate v Baulderstone Pty Ltd & Ors [2014] FCCA 721 at [20] relying on Barclay v Board of Bendigo Regional Institute of Technical and Further Education [2010] FCA 284; (2010) 193 IR 251 at 258([26]) (Tracey J)

[73] Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32; (2012) 86 ALJR 1044 at 1066 ([127]) (Gummow and Hayne JJ)

[74] Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32; (2012) 86 ALJR 1044 at 1068 ([140]) (Heydon J)

  1. An important aspect of determining whether in any given case a person has taken adverse action “because” of one or more of the matters specified in s.340(1) of the FW Act is s.361(1). That subsection provides:

If:

(a)           in an application in relation to a contravention of this Part, it is alleged that a person took, or is taking, action for a particular reason or with a particular intent; and

(b)          taking that action for that reason or with that intent would constitute a contravention of this Part;

it is presumed that the action was, or is being, taken for that reason or with that intent, unless the person proves otherwise.

  1. Thus, for example, if it is established that an employer had taken adverse action against an employee, and it is alleged the employer took that action because the employee has or has not exercised, an entitlement to a benefit under a workplace law, or the employee has made a complaint in relation to his or her employment, the employer will be presumed to have taken adverse action for that reason. The presumption, however, will be rebutted if the employer “proves otherwise”.

………………………………Conclusion and disposition

  1. I am satisfied that Allergan did not dismiss Mr Allen from his employment because Mr Allen made a complaint about Mr Sai or because Mr Allen asked for an investigation; Allergan dismissed Mr Allen because Allergan believed that Mr Allen instructed his lawyer to put forward a version of the conversations Mr Allen had with Mr Muhle and Ms White on 6 September 2017 that was false, and that he did this deliberately and wilfully, and that in so doing Mr Allen contravened Allergan’s code of conduct. It follows that Allegan did not, by dismissing Mr Allen from his employment, contravene s.340of the FW Act.
  2. Before I conclude, it may be appropriate to acknowledge that it is understandable that Mr Allen may have felt aggrieved by Allergan having issued to him a First and Final Warning Letter in circumstances where Mr Allen strongly believed that he had been the victim of a vicious verbal attack by a manager of Allergen which, in Mr Allen’s eyes, Allergan did not properly address. That sense of grievance, however, should be tempered by two considerations.
  3. First, as I put to counsel for Mr Allen, Mr Muhle is not omniscient; he had before him conflicting accounts of what occurred between two employees of Allergan; and, despite having made enquiry of Ms White, there was nothing that suggested to Mr Muhle that Mr Sai had previously engaged in conduct similar to that of which Mr Allen complained Mr Sai had engaged in. In those circumstances Mr Muhle suggested mediation, a reasonable response to Mr Allen’s complaint where the truth of Mr Allen’s complaint could not readily have been ascertained, if it could have been ascertained at all, with any reasonable degree of certainty.
  4. Second, as I have found, Mr Allen, admittedly in a state of great anger and upset, said words both to Mr Muhle and Ms White which suggested the possibility of violence by Mr Allen against Mr Sai. That is not something Mr Muhle, as a responsible manager, could have ignored. The manner in which Mr Muhle dealt with that issue was to inform the potential target of the threat, Mr Sai, that the threat of violence had been made, and to send the First and Final Warning Letter to Mr Allen. These responses, too, were reasonable. It was appropriate that Mr Sai, the potential victim of a threat of violence, be informed of the threat; and the First and Final Warning Letter went no further than stating that any further threat of violence by Mr Allen would not be tolerated and, if repeated, would result in his dismissal. There the matter arising out of the First and Final Warning Letter would have ended, had Mr Allen not taken exception to it.
  5. It was suggested to Mr Muhle that he himself did not fear that Mr Allen would carry through his threat because Mr Allen had only spoken in anger, and because Mr Muhle considered that, notwithstanding the threat of violence, Mr Allen and Mr Sai were capable of mediating their differences. These matters, however, are not to the point. Mr Muhle could not have ignored Mr Allen’s threat of violence; and Mr Muhle’s seeking to resolve by mediation the issues between Mr Sai and Mr Allen, including those that arose out of Mr Allen’s threat of violence, was a reasonable response to those issues.
  6. I propose to make an order dismissing the application. I will also reserve to the parties liberty to apply in relation to costs within fourteen days.”

 

ALLEN v ALLERGAN AUSTRALIA PTY LTD (2019) FCCA 871 delivered 5 April 2019 per Manousaridis J