General protections; exercising a workplace right

What is the exercise of a workplace right for the purposes of the general protections?

“The ambit of what amounts to a complaint for the purpose of s.341 is generally agreed to be broad, but not at large.[5]  In my view, the complaints and inquiries of which the Applicant has given evidence establish the relevant nexus.  The matters raised clearly had implications for the Applicant’s own employment and the nature of the duties he performed as well as the rights and employment of other employees.[6]  I turn to consider the causal link and whether the alleged adverse action was taken by the employer ‘because’ of the exercise of the workplace rights.  In my view, with respect to the medical evidence adverse action and the annual leave adverse action, it was.  I note that in the related judgment I made the following findings:

“50.         I have considered the affidavit material read by the applicant, the annexures to those affidavits, and the various exhibits tendered by him at trial.  In the absence of a respondent, the applicant understandably did not give evidence.  I accept the evidence of the applicant as set out in his affidavits.  I accept the underlying thesis of his submissions.  In other words, I accept that once the respondent realised that the applicant was, from its perspective, less co-operative than it would have liked, having been told of the respondent’s decision to drastically reduce the size of its Australian operations and retrench most of its local work force, it determined to make his position with it untenable and made a series of decisions aimed at avoiding its obligation to pay the applicant his full entitlements when his employment ceased.  It clearly took the view that the applicant had become a thorn in its side.  Those inferences are open on the evidence and I am prepared to draw them.  The respondent’s actions were clearly motivated by the issues raised by the applicant in the discussions and correspondence referred to in his evidence.

[5]     Construction, Forestry, Mining and Energy Union (CFMEU) v Pilbara Iron Co (Services) Pty Ltd (No 3) [2012] FCA 697.

[6]     See Walsh v Greater Metropolitan Cemeteries Trust (No.2) [2014] 243 IR 468 at [42]; Henry v Leighton Admin Services Pty Ltd (2015) 299 FLR 342 at [77].

…………………….

  1. Further, the respondent was, as I have already found, motivated in its actions by bad faith towards the applicant.  It appears to have been motivated by malice towards him as a result of his forthright behaviour after he learned that the respondent was to shut down most of its local operations.  Whilst the conduct of the respondent only amounted to a single contravention, that contravention involved a concerted course of conduct with a high degree of deliberation, completely ignoring the complaints made by the applicant.”
  1. I turn to consider firstly the medical certificate adverse action.  By email on 24 August 2017, an employee of the Respondent called Zinkov required the Applicant to provide medical certificates to support his having taken personal/carers leave on occasions beginning in May 2009.[7] It is patently transparent that the Respondent sought certificates that it must have known would be almost impossible for the Applicant to locate. However, I am not satisfied that its conduct could be said to have injured the employee in his employment or to have altered his position to his prejudice simply by virtue of the fact that the request was made. I am satisfied, as alleged in the alternative, that the Respondent’s request constituted a threat to deduct amounts of the Applicant’s entitlements to unpaid annual leave that would have otherwise have been payable on the termination of his employment. That was the clear implication of Zinkov’s request, particularly when seen in light of the other evidence. That amounted to adverse action within the meaning of s.342(2)(a) because a deduction from his entitlements would amount to an injury to him in the course of his employment within the meaning of Item (1)(b) of the table set out under s.342(1) of the Act.

[7]     Applicant’s affidavit at para [74].

  1. Those matters having been established, the reverse onus of proof embodied in s.361 is activated. The presumption of purpose is rebuttable. The respondent did not contest the proceedings. Even had it done so, merely taking issue with the allegations however vigorously would rarely be sufficient to displace the onus. That is because the question of causality, the ‘because’ aspect of s.341 is established by reference to the actual state of mind of the respondent.[8]

[8]     Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500.

  1. As a consequence, it is very hard for a respondent to displace the presumption of intent without the decision maker giving evidence.

 

 

BARTLETT v SIGNOSTICS LTD (IN LIQ) (No.2) [2019] FCCA 3506 delivered 4 December 2019 per  Heffernan J