General protections; what is adverse action?

The following extract from a recent decision of the Federal Circuit Court of Australia contains a useful analysis of what constitutes adverse action for the purposes of the general protections.

 

“In the present case, a question arises as to whether an employee is injured by being given a formal warning following a disciplinary process. In Community and Public Sector Union v Telstra Corporation Ltd (2001) 107 FCR 93, the Full Court considered the phrase, “alters the position of an employee to the employee’s prejudice” in s 298K(1)(c) of the WR Act (see now Item 1(c) of s 342(1) of the FWA). The Full Court held at [17]–[18] that the imposition of terms that reduce the security of employment may alter the position of an employee to the employee’s prejudice, provided that the alteration is real and substantial, rather than merely possible or hypothetical. In Construction, Forestry, Mining and Energy Union v Coal and Allied Operations Pty Ltd (1999) 140 IR 131; [1999] FCA 1531, Branson J at [95] rejected a submission that a formal warning to an employee did not alter his position to his prejudice, finding the warning had made his position less secure: see also Finance Sector Union of Australia v Australian & New Zealand Banking Group Ltd (2002) 120 FCR 107, per Wilcox J. These cases demonstrate that a formal warning may cause a practical detriment to an employee. In my opinion, a practical detriment of that kind may also amount to injury to an employee.

  1. There is also an issue in the present case as to whether distress, falling short of a psychiatric injury, can be an injury to an employee in his or her employment within Item 1(b) of s 342(1) of the FWA. One of the contexts in which the issue arises is whether a threat of disciplinary action causes, or can cause, injury.
  2. As the Macquarie Dictionary definition demonstrates, the ordinary conception of “injure” is to cause harm of any kind, damage, hurt or impair. A recognisable psychiatric illness clearly comes within the conception of an injury under s 342(1). Subject to qualifications which I will come to, I do not think that psychological or emotional distress falling short of a recognisable psychiatric illness is necessarily excluded. A situation can readily be imagined where an employee is bullied and harassed by a supervisor to the point where the employee experiences great distress at work on a daily basis, but that distress does not rise as high as a psychiatric injury. In my opinion, distress falling short of a recognisable psychiatric illness may be regarded as an injury if it causes sufficient harm, damage, hurt or impairment to the employee’s emotional state.
  3. However, in the context of s 342(1), not all harm, damage, hurt or impairment to an employee’s feelings can necessarily be regarded as an injury. In my opinion, the word “injury” implies that a minimal level of harm is insufficient. For example, I do not think that a person who experiences physical pain that is slight and fleeting could be said to be injured. In the day to day conduct of any employment relationship, an employer may make decisions and take actions which result in disappointment, upset or reduction in job satisfaction. Some examples include asking an employee to improve their punctuality or performance, requiring an employee to do new or different duties, or requiring an employee to work reasonable overtime. In such a circumstance, it could not necessarily be said that the “employer…injures the employee in his or her employment”. To be described as an “injury”, there must be a sufficient level of harm, damage, hurt or impairment to the employee’s emotional or psychological welfare. A qualitative judgment must be made as to whether the level of emotional distress demonstrated by the evidence amounts to an injury.
  4. In Hammond v Department of Health (1983) 6 IR 371, the Industrial Commission of New South Wales in Court Session, considered an allegation that the respondent contravened s 95 of the Industrial Arbitration Act 1940 (NSW) by injuring an employee in her employment or altering her position to her prejudice by reason of her membership of an industrial union. The Commission held at 375:

We are of the view that, when determining whether a prima facie case has been made out that an employer has injured a person in his employment, or altered that person’s position to his prejudice, an objective view must be taken. We can understand and, indeed, sympathise with an employee when a change in position results, in the employee’s view, in less job satisfaction than he was formerly experiencing. But if that were the only “injury” or “prejudice” which the employee suffers, it would be insufficient, in our view, to bring the employer within the purview of s. 95 of the Act.

  1. Accordingly, when determining whether an injury has occurred, it is necessary to take an objective view: the employee’s subjective view alone is insufficient to make out an injury.
  2. In United Firefighters’ Union of Australia v Metropolitan Fire and Emergency Services Board (2003) 198 ALR 466; [2003] FCA 480, Goldberg J, in the course of deciding whether a prima facie case existed, said at [89]:

I do not accept that a person charged is not affected in his or her employment until the charge has been proven. The expressions found in s 298K(1)(b) and (c) encompass a wide range of conduct both direct and indirect. The laying of the charges exposes an employee of the Board to a potential disadvantage in his or her employment if the charges are ultimately proven.

  1. I accept that the taking of disciplinary proceedings can cause injury to an employee because the employee is exposed to the potential of adverse consequences for his or her employment. The employee’s employment may be less secure. Further, a threat to take disciplinary proceedings may amount to an injury because, if the threat is carried out, the employee is exposed to potential adverse consequences. In my opinion, the emotional consequences of such a threat being made or proceedings being taken may also amount to an injury.
  2. Under Item 1(b) of s 342(1) of the FWA, any emotional distress amounting to injury to an employee must be “in his or her employment”. In Maritime Union of Australia v Fair Work Ombudsman (2016) 247 FCR 154, Bromberg J held at [59]:

The word “in” has a different purpose. It requires that the effect be located in the person’s employment. It identifies that there must be a nexus between the effect and an advantage enjoyed by the person which that effect has prejudicially altered. The advantage affected must be an advantage enjoyed in the person’s employment. The word “in” connotes that the advantage must derive from the employment. If a mere relation, as distinct from a derivational relation, between the employment and the advantage had been intended, the familiar statutory phrase “in or in connection with”, or perhaps just “in connection with”, would likely have been utilised. The preposition “in” operates by way of limitation.

(Emphasis in original.)

  1. I respectfully agree with his Honour’s analysis. I would add that the phrase “in his or her employment” may be contrasted with “in relation to his or her employment” (used in the definition of “workplace right” in s 341(1)(c)(ii) of the FWA). The former requires a closer connection between the injury and the employment than would be required if the latter were used. Not every injury that has a relationship with employment is necessarily an injury “in employment”.”

 

Lamont v University of Queensland (No 2) (2020)  FCA 720 delivered 28 May 2020 per Rangiah J