It is a breach of the general protections and a contravention of the Fair Work Act for an employer to take adverse action against an employee because he or she is tempraorily absent from work due to illness or accident. However that doe not mean that is is ulawful for an employer to take adverse action against an employee, including a dismissal while the employee is temproariy absdnt from work due to illness or accident; it is the “because” which is critical, thus

“FAIR WORK ACT CLAIMS

Section 340(1) of the Fair Work Act proscribes “adverse action” being taken against a person because that person has exercised a workplace right. It relevantly provides:

340     Protection

(1)      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.

Note:    This subsection is a civil remedy provision (see Part 4‑1).

Section 341 defines the circumstances in which a person has a workplace right. It relevantly provides:

341     Meaning of workplace right

Meaning of workplace right

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

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

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

Section 342(1) sets out circumstances in which a person takes adverse action against another person. Relevantly, an employer takes adverse action against an employee if the employer dismisses the employee.

Littlepay admitted that it took adverse action against Ms Buckeridge by dismissing her on 3 December 2021. The present issue is whether it did so in contravention of s 340(1)(a)(ii) of the Fair Work Act.

Sections 360 and 361 facilitate proof by an applicant of a claim of adverse action. Section 360 provides that “a person takes actions for a particular reason if the reasons for the action include that reason”.

Section 361(1) creates a rebuttable presumption (or reverse onus) for claims of adverse action:

361     Reason for action to be presumed unless proved otherwise

(1)      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.

The “plain purpose” of s 361(1) “is to throw[] on to the defendant the onus of proving that which lies peculiarly within his own knowledge”. Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500 at 520 [50] (French CJ and Crennan J), quoting General Motors–Holden’s Pty Ltd v Bowling (1976) 51 ALJR 235 at 241 (Mason J).

Ms Buckeridge alleged that Littlepay contravened s 340(1)(a)(ii) by dismissing her because of her exercise of workplace rights in making complaints. Section 361(1) is therefore engaged.

In Alam v National Australia Bank Ltd (2021) 288 FCR 301 at 306-8 [14], the Full Court (White, O’Callaghan and Colvin JJ) noted that several matters bearing upon the application of s 361 in relation to s 340 are settled:

(a)          in order to attract the application of s 361, an applicant should allege with sufficient particularity both the action said to constitute “adverse action” and the particular reason or particular intent with which it is said the action was taken: Short v Ambulance Victoria (2015) 249 IR 217 (Dowsett, Bromberg and Murphy JJ) at [55];

(b)          the party making the allegation that adverse action was taken “because” of a particular circumstance must establish the existence of that circumstance as an objective fact: Tattsbet Ltd v Morrow (2015) 233 FCR 46 at [119]. That is, it is for the applicant to establish all the elements of the alleged contravention other than the reasons of the respondent for taking the adverse action: Australian Building and Construction Commissioner v Hall (2018) 261 FCR 347 (ABCC v Hall) at [100];

(c)          an employer takes adverse action in contravention of s 340 if a proscribed reason is a “substantial and operative” reason for the action or if the reasons for the action include the proscribed reason: Bendigo v Barclay at [104] (Gummow and Hayne JJ);

(d)          the discharge of the s 361 onus requires proof on the balance of probabilities and usually requires decision-makers to give direct evidence of their reasons for taking the adverse action: Bendigo v Barclay at [43]-[44];

(e)          the determination of why an employer took adverse action against an employee requires an inquiry into the actual reason or reasons of the employer and is to be made in the light of all the circumstances established in the proceeding: Bendigo v Barclay at [41], [45] (French CJ and Crennan J); at [101] (Gummow and Hayne JJ); Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (2014) 253 CLR 243 (CFMEU v BHP Coal) at [7] (French CJ and Kiefel J); Construction, Forestry, Mining and Energy Union v Anglo Coal (Dawson Services) Pty Ltd (2015) 238 FCR 273 (CFMEU v Anglo Coal) at [27]; ABCC v Hall at [19];

(f)          while the evidence of the decision-maker as to the reasons for the taking of the adverse action may, if accepted by the Court, satisfy the s 361 onus, such evidence is not a necessary pre-condition: CFMEU v BHP Coal at [192]; Australian Red Cross Society v Queensland Nurses’ Union of Employees (2019) 273 FCR 332 at [72];

(g)          the Court’s rejection of the evidence of the decision-maker as to the reasons for the adverse action will ordinarily be “a weighty consideration and often a determinative consideration” in the determination of whether the reason alleged by the applicant was a substantial and operative reason for the action (Cummins South Pacific Pty Ltd v Keenan (2020) 281 FCR 421 at [116]), but such a rejection does not relieve the Court from considering all the evidence probative of whether the reason asserted by the applicant has been negated: ibid; CFMEU v Anglo Coal at [27]; Australian Licenced Aircraft Engineers Association v International Aviation Service Assistance Pty Ltd (2011) 193 FCR 526 at [272]. When there is evidence of a broad range of facts and circumstances, which are not dependent on acceptance of the decision-maker’s evidence about his or her asserted reason for the dismissal, such evidence must be taken into account in assessing whether the reasons asserted by an applicant were a substantial and operative reason for the action; ibid at [113]; TechnologyOne Ltd v Roohizadegan (2021) 309 IR 262 at [105]-[106];

(h)          even if the reasons advanced by a respondent as the actual reasons for the decision are accepted, the absence of evidence that there were no additional reasons or that the actual reasons did not include the alleged proscribed reasons, may result in a failure to rebut the presumption: National Tertiary Education Union v Royal Melbourne Institute of Technology (2013) 234 IR 139 at [20]; PIA Mortgage Services Pty Ltd v King (2020) 274 FCR 225 at [154] (Snaden J);

(i)          the decision-maker’s knowledge of the circumstance asserted by an applicant to be the reason for the adverse action, and even its consideration, does not require a finding that the action was taken because of that circumstance: Bendigo v Barclay at [62]; Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (No 3) (2012) 228 IR 195 at [80] (Jessup J); Shea v TRUenergy Services Pty Ltd (No 6) (2014) 242 IR 1 at [777]. Nor does the fact that the adverse action has some association with a matter supporting a proscribed reason: CFMEU v BHP Coal at [20], [87]-[88]; Construction, Forestry, Mining and Energy Union v Endeavour Coal Pty Ltd (2015) 231 FCR 150 at [32], [47]-[48] (Jessup J); and

(j)           adverse action taken against a person because of conduct resulting from the exercise of workplace rights may not offend the s 340(1) prohibition: CFMEU v BHP Coal; Endeavour Coal at [52] (Perram J).

Section 352 is as follows:

Temporary absence – illness or injury

352         An employer must not dismiss an employee because the employee is temporarily absent from work because of illness or injury of a kind prescribed by the regulations.

Note:   This section is a civil remedy provision (see Part 4-1).

Section 793 is also relevant where it is alleged that a body corporate has engaged in unlawful adverse action. It is as follows:

793     Liability of bodies corporate

Conduct of a body corporate

(1)      Any conduct engaged in on behalf of a body corporate:

(a)          by an officer, employee or agent (an official) of the body within the scope of his or her actual or apparent authority; or

(b)          by any other person at the direction or with the consent or agreement (whether express or implied) of an official of the body, if the giving of the direction, consent or agreement is within the scope of the actual or apparent authority of the official;

is taken, for the purposes of this Act and the procedural rules, to have been engaged in also by the body.

State of mind of a body corporate

(2)          If, for the purposes of this Act or the procedural rules, it is necessary to establish the state of mind of a body corporate in relation to particular conduct, it is enough to show:

(a)          that the conduct was engaged in by a person referred to in paragraph (1)(a) or (b); and

(b)          that the person had that state of mind.

Meaning of state of mind

(3)      The state of mind of a person includes:

(a)          the knowledge, intention, opinion, belief or purpose of the person; and

(b)          the person’s reasons for the intention, opinion, belief or purpose.

It was common ground that Mr Shayan was the controlling mind of Littlepay.

Disposition

As I have already said, Littlepay admitted that it took adverse action within the meaning of s 342(1) of the Fair Work Act against Ms Buckeridge by terminating her employment on 3 December 2021. It was also admitted that Ms Buckeridge made the Griffin Complaint and the Shayan Complaint, and that the making of those Complaints were exercises of her workplace rights.

As Littlepay submitted, that meant that:

[T]he Court’s focus can be upon whether the [r]espondent has discharged its onus of showing, on the balance of probabilities, that the Griffin Complaint and the Shayan Complaint (and the [taking of sick leave]) were not substantial or operative reasons for Mr Shayan’s decision, taken on behalf of the [r]espondent, to dismiss the [a]pplicant.

As French CJ and Crennan J (with whom Gummow and Hayne JJ agreed) said in Barclay at 517 [44], the central question is “why was the adverse action taken?”

As to the sick leave allegation, if the adverse action was taken because Ms Buckeridge was absent on sick leave, then that adverse action was unlawful.

Section 361(1) of the Fair Work Act requires the court to presume that the answer to this question is “yes”, unless or until Littlepay proves to the contrary. It therefore falls to Littlepay to establish that Ms Buckeridge’s dismissal was not actuated, in any way, by her having exercised those workplace rights.

As Snaden J said in Serpanos v Commonwealth [2022] FCA 1266 at [95], “[m]ore accurately, [s 361(1)] requires evidence as to what did not actuate the dismissal (which is a task most often discharged by proving what did)”.  See also Barclay at 546 [146] (Gummow and Hayne JJ).

Chief Justice French and Crennan J in Barclay at 517 [45] said that:

This question [why was the adverse action taken] is one of fact, which must be answered in the light of all the facts established in the proceeding. Generally, 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. Direct evidence of the reason why a decision-maker took adverse action, which may include positive evidence that the action was not taken for a prohibited reason, may be unreliable because of other contradictory evidence given by the decision-maker or because other objective facts are proven which contradict the decision-maker’s evidence. However, direct testimony from the decision-maker which is accepted as reliable is capable of discharging the burden upon an employer …

(Citations omitted; emphasis added.)

It follows that if Mr Shayan’s direct testimony as to what actuated his reasons for dismissal is accepted as reliable, then Littlepay will have discharged its onus.  Mr Fetter accepted as much in his closing address (“You have before you evidence on affidavit as to Mr Shayan’s reasons, which, if they’re to be believed, exonerate him and the company”).

As Snaden J said in Serpanos at [124]:

A respondent may rebut the statutory presumption for which s 361(1) provides by leading evidence as to why it engaged in the conduct that an applicant seeks to impugn. The question for determination starts and ends with whether, in fact, those reasons actuated that conduct.  … At issue is simply whether [the reasons for which it did] were, in fact, the reasons that animated that conduct.

(Emphasis added.)

Ms Buckeridge submitted that she was dismissed because she exercised her workplace rights in making the Griffin Complaint and making the Shayan Complaint, and because she was absent on sick leave.

Her closing written submissions on the reasons for dismissal ultimately relied on were as follows:

7.           The Court should reject Mr Shayan’s evidence as to his reasons. He was an unimpressive witness.

8.           …

9.           Things took a turn for the worse in early 2021, when Ms Buckeridge began complaining about Mr Griffin, a “valuable” new hire. Mr Shayan resented the complaints and wanted to shield Mr Griffin from their consequences. It is this which prompted Mr Shayan to consider (after the June 2021 meeting) retrenching Ms Buckeridge.

10.          The last straw, it seems, was Ms Buckeridge’s request for a formal investigation, made on 19 July 2021. Mr Shayan resented the “impact” of the investigation on Mr Griffin, and the cost to Littlepay. As soon as the Blax report landed, he decided that Ms Buckeridge’s role should be abolished; although he may be accepted in his evidence that he intended to consult with her about redeployment before taking the final decision to dismiss her.

11.          However, on 19 September 2021, Ms Buckeridge complained to ICM about Mr Shayan. Mr Shayan was very upset by the complaints and wanted to be “cleared”.

12.          By Friday 26 November 2021, Mr Shayan knew that WorkLogic had found the allegations “unsubstantiated” but only on the basis that Ms Buckeridge had not participated in an interview (which she was not required to attend).

13.          Whether he was “cleared” or not, Mr Shayan was still highly aggrieved by the fact that serious allegations had been made against him. He therefore determined to dismiss Ms Buckeridge without consulting with her about redeployment; this would ensure that she could not repeat her offers to redeploy to London, and ensure that the outcome would be her dismissal.

14.          He made sure of this outcome by rushing the process, insisting on the Friday meeting (which she was not bound to attend), and then relying on her failure to attend the meeting as a reason to proceed with the dismissal.

15.          The fact that Mr Rogers’ job is in substance the same as Ms Buckeridge’s former role shows that “redundancy” was always a fig leaf.

Littlepay submitted that Mr Shayan’s reason for dismissing Ms Buckeridge was due to redundancy, and that I should accept Mr Shayan’s sworn evidence in his 17 November 2022 affidavit that:

27.          [D]uring 2021, I decided that it was necessary to restructure the legal function due to the following operational reasons:

(a)          the commercial function being based in London;

(b)          the majority of our contracts being entered into in jurisdictions other than Australia, mainly being in the UK, Europe and the USA;

(c)          the difficult difference in time zones between Melbourne, the UK, Europe and the USA;

(d)          problems getting legal work completed due to the difficult time zones;

(e)          a change in the nature of the legal support required; and

(f)          regulatory and compliance aspects of the role, which require close engagement with partners, and being better suited to someone in the jurisdiction.

38.          Once Paul [Griffin] started, it became increasingly apparent to me that it didn’t make sense for the legal function (the role carried out by Rebecca) to be based in Australia, as these two roles (commercial and legal) required daily collaboration. Prior to hiring Paul when I was managing commercial negotiations, having the legal function in Australia working closely with myself worked well. By the same logic, having the legal function in the UK and close to the commercial activities would be more efficient and effective.

Mr Fetter challenged Mr Shayan on the proposition at paragraph [38] of his affidavit in the following exchange:

And you’ve said in your affidavit that there needed to be daily collaboration between Ms Buckeridge and Mr Griffin about that, yes?—I believe that – yes.

Yes. And there’s such a thing as a telephone, isn’t there?—Yes.

Yes. And there’s video and emails and all the other tools of modern communication, yes?—Yes, but the working day of the UK is completely opposite to the working day of Australia. So these were – you know, it was just a very inefficient structure to be having. It would mean that either Ms Buckeridge would be doing lots of late night calls or vice versa, and it just wasn’t very effective.

But Ms Buckeridge had been doing late night calls since she was hired in 2017, hadn’t she?—To some extent, but most of the – as I said, most of the commercial work that involved interactions with Ms Buckeridge was done by myself, and that’s why we hired the role in Australia at that time.

Well, Mr Shayan, what I’m putting to you is nothing really changed in the role. Ms Buckeridge had been dealing with late night calls since 2017 perfectly well. You disagree, don’t you?—I do disagree, and I think it was a very ineffective way to run the operation. I think it – you know, we’ve validated that since we’ve changed the structure.

Mr Shayan further deposed that Littlepay had (and has) “very little Australian work” and that its significant contracts are with institutions based in Europe:

40.          Littlepay has a small number of very significant contracts. These contracts are typically with government transport agencies, financial institutions such as Visa, Elavon, and Mastercard, and private transit operators. These financial institutions are all based in Europe. Given the nature of the services provided and the nature of the clients, Littlepay is required to engage in very detailed regulatory processes and contracts.

41.          Our main business activities are in UK and across Europe. The usually very different time zones to Australia have often made it difficult to arrange and organise meetings with the legal function and to facilitate the smooth flow of legal work. We often have very little control or flexibility over when meetings are held in regulated tenders and we are often sent a meeting time by the clients (or potential clients) and expected to attend the meeting at the time requested.

As such:

42.          There were significant problems with the legal function in this regard. Given that most of the company’s clients were (and are) based in the UK and Europe, and the new Global Head of Commercial was based in London, to minimise some of the difficulties caused by different time zones, it was not practicable for the General Counsel role to be based in Melbourne on an ongoing basis. I felt Rebecca was unable to process an adequate volume of legal work, partially due to the impracticality to simply go and meet or speak with the legal counterparts at a client or partner.

51.          The nature of Littlepay’s business means that there are a number of technical compliance and regulatory issues (such as data protection and privacy for example) and I had come to see that it didn’t make sense to have a general counsel based in Melbourne dealing with regulatory stakeholders in the UK and Europe, even ignoring the time zone issues. I am not a data protection expert, but it is my general understanding that the data protection issues in Europe are particularly complex and the UK’s exit from the European Union has made this even more complicated. I was concerned that we might fail to meet our compliance and regulatory requirements if we continued to try and manage UK and European legal compliance and regulatory issues in the way that we had been from Melbourne.

52.          In my view, the compliance and regulatory aspects are the most important elements of the business’s legal functions. To me, this is the really important piece. That’s often what takes most of our time in the legal area including contracting. It is the data compliance aspect that is very complicated. The commercial part is really quite straightforward.

Mr Fetter also challenged this part of Mr Shayan’s evidence in the following exchange:

All right. Well, let’s come to that. Another reason you advance at paragraph 51 on 302 is that:

The nature of the business means that there are technical compliance and regulatory issues such as data protection which wouldn’t make sense to be done from Melbourne.

You see that?—Yes.

Now, again, you don’t cavil with the proposition that Ms Buckeridge has got the expertise to do that work?—No, I do not.

Okay. And so it’s just a question of whether someone who is based in Melbourne is able to do, for instance, European data protection work, and I suggest to you that that’s routinely done. That Australian lawyers are doing global work; do you agree with that or you can’t say?—I can’t say.

All right. Well, I put to you that, specifically for the Littlepay context, a Melbourne lawyer could deal certainly with non-urgent issues of data protection and privacy on Melbourne time; do you agree with that?—As I said, it’s a question of efficacy, not a question of whether it can be done, but how well it can be done. That’s the issue. And it was my feeling that it could be done better if the position was structured in the time zone with commercial and the partners and the customers.

And just to make sure we’re on the same page, when you say “it could be done better”, we’re only talking about the delay potentially between European time and Australian time. It’s a time delay; yes?—It’s a collaboration delay. It’s being able to sit next to someone and have a discussion. I think face-to-face contact is important. It wasn’t possible at this time, but it is possible now, and that makes a difference. It’s – and being in the same time zone for eight hours in a day, gives you a lot more opportunity to have dialogue. It’s – – –

Well, how are you based here, Mr Shayan?—Well, it’s very difficult. I question my location often. I have to travel to Europe quite a bit, and if I could do it all again, I probably wouldn’t be based here. It’s – it’s not ideal.

Well, Ms Buckeridge could fly if that was important to the company that – the face-to-face meeting. You would send her, wouldn’t you?—Yes, but it wouldn’t be – it would be expensive and not ideal. Again, it could be done, but it’s not effective or efficient or ideal.

I do not accept Mr Fetter’s submission that Mr Shayan was an unimpressive witness.  On the contrary, in my view Mr Shayan was a reliable witness.  Nothing about his demeanour or content of his responses under cross-examination suggested anything other than that he was a witness of truth.  His responses under cross-examination were reliable and consistent with his affidavit evidence, and the contemporaneous documents.

In particular, I accept the truth of his evidence, including that given in the course of his  cross-examination (evidence that was consistent with his affidavit evidence) that Ms Buckeridge’s position was made redundant, and the legal function was restructured, because:

(a)          the commercial function was based in London;

(b)          the majority of our contracts were entered into in jurisdictions other than Australia, mainly being in the UK, Europe and the USA;

(c)          of the difficulties posed by the difference in time zones between Melbourne, the UK, Europe and the USA;

(d)          of problems getting legal work completed due to the difficult time zones;

(e)          of a change in the nature of the legal support required; and

(f)          regulatory and compliance aspects of the role are being better suited to someone in the jurisdiction (not being Australia).

Mr Shayan’s oral and affidavit evidence was also consistent with the “September board update” at paragraphs [39]-[41] above, including that Littlepay had expanded into international markets, the desire to have a legal team geographically located to collaborate with stakeholders in the EU and the Americas.

The chronology of events is important.

Mr Shayan requested that the board approve his proposed restructure of Littlepay’s legal function – including making redundant the General Counsel position – on 14 September 2021.

Ms Buckeridge did not send the first email that forms part of the pleaded Shayan Complaint until 19 September 2021 and Mr Shayan was not informed of the Shayan Complaint until 30 September 2021 (see paragraphs [56] and [62] above).

It is thus clear that Mr Shayan had resolved to make redundant the General Counsel position, and therefore dismiss Ms Buckeridge, before Ms Buckeridge exercised her workplace right in making the Shayan Complaint, a point that Mr Shayan made persuasively during the course of his cross-examination, as follows:

My view was that the decision [regarding Ms Buckeridge’s employment] had already been made prior to these allegations coming to light and had been approved by the directors.  The investigation – the allegations were made.  I was asked to put the redundancy on hold.  We did that.  The investigation ran its course.  And once it finished running its course, we resumed with the decision that had been made earlier.

[As] my affidavit shows, we were about to proceed with this redundancy several weeks or months earlier.  And it was put on pause because of this investigation.  So this was simply when the investigation was over and there was nothing, really, for us to consider at that point, we continued with what had been agreed and approved by the board.

I am thus satisfied that Littlepay did not dismiss Ms Buckeridge because, or for reasons including that, she made the Shayan Complaint.

The gravamen of Ms Buckeridge’s submission that Mr Shayan terminated her employment because she made the Griffin Complaint was as follows:

Things took a turn for the worse in early 2021, when Ms Buckeridge began complaining about Mr Griffin, a “valuable” new hire. Mr Shayan resented the complaints and wanted to shield Mr Griffin from their consequences. It is this which prompted Mr Shayan to consider (after the June 2021 meeting) retrenching Ms Buckeridge.

The last straw, it seems, was Ms Buckeridge’s request for a formal investigation, made on 19 July 2021. Mr Shayan resented the “impact” of the investigation on Mr Griffin, and the cost to Littlepay. As soon as the Blax report landed, he decided that Ms Buckeridge’s role should be abolished; although he may be accepted in his evidence that he intended to consult with her about redeployment before taking the final decision to dismiss her.

Mr Fetter pressed Mr Shayan about the allegation of Mr Shayan’s alleged “resentment” in the following exchange:

… I mean, when someone makes a complaint, you accept they have a right to make a complaint in good faith. Yes?—Absolutely.

And it may turn out that what they’re complaining about isn’t substantiated. Yes?—That is correct.

And so when you now in your evidence are fastening upon the fact that some of the allegations that Ms Buckeridge made were not substantiated, I want to suggest to you [that] you were aggrieved by the mere making of the allegations, weren’t you?—No, I was not.

And in part you were aggrieved because it consumed the time and resources of Littlepay, quoting from the email, to investigate them. Yes?—No. That is untrue.

Mr Shayan also said in the course of his cross-examination that “before [Ms Buckeridge’s] complaints against Mr Griffin … we had already discussed the abolition of the general counsel role in Australia, but it had not been formalised, written or taken to the board”.

This is consistent with Ms Tod’s evidence that, after the 18 June 2021 meeting, she recommended to Mr Shayan that Littlepay “undertake a broader restructure involving abolishing the Australian General Counsel position”, and that by early July 2021, Mr Shayan “had decided to proceed with the restructure to remove [Ms Buckeridge’s] position and to notify [her] of a redundancy accordingly”.

I accept the truth of Mr Shayan’s sworn evidence that he was not actuated by resentment or any such thing when he made the decision to make redundant Ms Buckeridge’s position, and that the true and only reasons for doing so were the reasons Mr Shayan gave under his oath.

I am thus satisfied that Littlepay did not dismiss Ms Buckeridge because, or for reasons including that, she made the Griffin Complaint.

In summary, for the reasons I have given, I accept that:

(1)          Mr Shayan terminated Ms Buckeridge’s employment only because of redundancy, as set out at paragraph [116] above and in the termination letter; and

(2)          Mr Shayan did not terminate Ms Buckeridge’s employment because, or for reasons including that, she exercised her workplace rights in making the Griffin Complaint or Shayan Complaint.

(3)          Littlepay’s termination of Ms Buckeridge’s employment did not contravene s 340(1)(a)(ii) of the Fair Work Act.

Littlepay also bears the onus of proving that Ms Buckeridge’s dismissal was actuated by reason of her absence on sick leave. See s 361(1) of the Fair Work Act.

The applicant’s written submissions did not address this issue in any meaningful way, other than to say that “[a]s to the absence on sick leave, there is no dispute that the [a]pplicant was protected by [s 352] at the time of dismissal”.

Mr Fetter cross-examined Mr Shayan about Ms Tod’s 29 November 2021 email to Ms Buckeridge (set out at paragraph [86] above), relevantly as follows:

Now, again, just to be clear, at this time she’s on – she’s absent on sick leave, yes?   Yes.

And so you must have known that it was unreasonable to require her to attend a meeting when she was on sick leave, yes?   No, because I think our view was that she had been on sick leave for a very extended period.  She had used up all of her sick leave provisions.  We had been without any legal resource which was very important to us, for a number of months.  And we needed to continue to run the business.  So we had to proceed at that point, and we were advised that it was appropriate to do so.

But, Mr Shayan, she had every right to take paid sick leave, didn’t she?   Yes.  And she did.

Yes?   She used all her paid sick leave.

And then she also had the right, to your knowledge – or tell me if you weren’t aware – under the Fair Work Act, even after the sick leave had run out, if she was unwell, she had the right to be absent from work for a period? Yes, but the business also has a right to continue to operate, and we were advised that by that time we were – we were entitled to continue with operating the business.

You say you were advised, were you?   Yes.  I believe so.

You don’t speak of the advice in your affidavit, do you?   I don’t think so.  No.  But we were – we were, you know – we were engaged with legal advice throughout this process.

All right.  Well, unless you really want to tell me what was in the advice, I won’t press you for it.  But the – I want to take you up on the idea that there was some sort of hurry to get this done.  Ms Buckeridge – there was nothing in front of you that suggested that her absence was going to last months and months, was there?   It had already lasted several months.  So     

I think six weeks, to be fair, at this stage?   Six weeks of sick leave and – and no indication of any time to return.  So     

But you had said earlier in your evidence that it was going to take a long time to hire a replacement anyway in the UK, remember that?   Yes, which we had put on pause throughout this period.

Yes.  So what I’m putting to you was that there was no hurry on the Monday to sack her by the Friday.  Do you agree?   There was no reason to not continue with the decision that we had made by – you know, that we had formalised a couple of months earlier.  So we just didn’t understand – we didn’t know why we shouldn’t proceed, I think.

Well, you were seizing upon the fact that you had this apparent vindication through the Worklogic report to get rid of her, weren’t you?   No.  That’s incorrect.

As noted at paragraph [10] above, and as is clear from that transcript extract, there was some dispute about whether Ms Buckeridge had a legal entitlement to be on sick leave at the date of her dismissal.

That is beside the point.

Section 352 of the Fair Work Act prohibits an employer dismissing an employee because they are temporarily absent from work because of illness or injury. It does not does not preclude the dismissal of an employee while the employee is temporarily absent from work because of illness or injury. See, by way of example only, Khiani v Australian Bureau of Statistics [2011] FCAFC 109.

I should also note that whether it was “unreasonable to require [Ms Buckeridge] to attend a meeting when she was on sick leave” is also beside the point. A claim under Pt 3-1 of the Fair Work Act “is not a broad inquiry as to whether the applicant has been subjected to a procedurally or substantively unfair outcome”. Ermel v Duluxgroup (Australia) Pty Ltd (No 2) [2015] FCA 17 at [48] (Bromberg J).

The only relevant question is whether Ms Buckeridge’s taking of sick leave actuated her dismissal.  In my view, it did not.  As I have explained, I am satisfied on the evidence that the only reason that Littlepay dismissed Ms Buckeridge was because of redundancy.

Accordingly, Littlepay’s termination of Ms Buckeridge’s employment did not contravene s 352 of the Fair Work Act.

For those reasons, Ms Buckeridge’s claims under the Fair Work Act must be dismissed.”

Buckeridge v Littlepay Pty Ltd [2023] FCA 1036 delivered 30 August 2023 per O’Callaghan J

And see

FAIR WORK REGULATIONS 2009 – REG 3.01

Temporary absence–illness or injury

             (1)  For section 352 of the Act, this regulation prescribes kinds of illness or injury.

Note:          Under section 352 of the Act, an employer must not dismiss an employee because the employee is temporarily absent from work because of illness or injury of a kind prescribed by the regulations.

             (2)  A prescribed kind of illness or injury exists if the employee provides a medical certificate for the illness or injury, or a statutory declaration about the illness or injury, within:

                     (a)  24 hours after the commencement of the absence; or

                     (b)  such longer period as is reasonable in the circumstances.

Note:          The Act defines medical certificate in section 12.

             (3)  A prescribed kind of illness or injury exists if the employee:

                     (a)  is required by the terms of a workplace instrument:

                              (i)  to notify the employer of an absence from work; and

                             (ii)  to substantiate the reason for the absence; and

                     (b)  complies with those terms.

             (4)  A prescribed kind of illness or injury exists if the employee has provided the employer with evidence, in accordance with paragraph 107(3)(a) of the Act, for taking paid personal/carer’s leave for a personal illness or personal injury, as mentioned in paragraph 97(a) of the Act.

Note:          Paragraph 97(a) of the Act provides that an employee may take paid personal/carer’s leave if the leave is taken because the employee is not fit for work because of a personal illness, or personal injury, affecting the employee.

             (5)  An illness or injury is not a prescribed kind of illness or injury if:

                     (a)  either:

                              (i)  the employee’s absence extends for more than 3 months; or

                             (ii)  the total absences of the employee, within a 12 month period, have been more than 3 months (whether based on a single illness or injury or separate illnesses or injuries); and

                     (b)  the employee is not on paid personal/carer’s leave (however described) for a purpose mentioned in paragraph 97(a) of the Act for the duration of the absence.

             (6)  In this regulation, a period of paid personal/carer’s leave (however described) for a purpose mentioned in paragraph 97(a) of the Act does not include a period when the employee is absent from work while receiving compensation under a law of the Commonwealth, a State or a Territory that is about workers’ compensation.