It is reasonable well known that it is an unlawful for a person (which includes a national system employer) to take adverse action against another person because the latter exercises a workplace right. But what does that mean? Here is an extract from a decision of the Federal Circuit Court of Australia which endeavours to answer that question.
“The applicant also alleged that her employment was terminated because she exercised a workplace right to make a complaint or enquiry in relation to her employment pursuant to s.341 of the Fair Work Act. Paragraph [16] of her statement of claim alleges “in mid-June 2016 the applicant made a complaint to the respondent regarding the competency of Rob Francasio – Implementation Director and her assumption of some of his responsibilities.” The complaint was said to have been oral and contained in discussions between the applicant and Mr Batish and the applicant and Mr Nunn.
It is also asserted by paragraph [17] of the statement of claim that on 1 July 2016, the applicant made a complaint to the respondent regarding the competency of Mr Francasio. That complaint was said to be oral and contained in a discussion between the applicant and Mr Batish. By paragraph [18] the applicant alleges that she complained multiple times about her workload as she was covering more than a strategy function and was also involved in new business and implementation.
The evidence does establish that there were discussions between the applicant and Mr Batish and Mr Nunn regarding concerns held by the applicant about Mr Francasio’s performance and the impact that she perceived that had on her workload. The applicant gave evidence that she made a “ work inquiry” regarding her job responsibilities, about structure and her workload with Mr Batish.[23] This resulted in Mr Batish convening a discussion between the applicant and Mr Francasio. Whilst the applicant gave evidence that she was not particularly satisfied by the outcome of that discussion, the applicant did not point to anything that was said or done by Mr Batish or Mr Nunn as a result of her raising those concerns.
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[23] Transcript p231 -30
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In my view the discussions that the applicant had with Mr Nunn and Mr Batish in relation to Mr Francasio were in the nature of conversations that are an ordinary incident of employment, where a comment is made by one employee regarding another regarding that person’s work. Having heard the applicant’s evidence regarding her discussions regarding Mr Francasio’s performance it is difficult to discern that they rose to level that the words used by the applicant conveyed “ a grievance, a finding of fault or accusation”[24] .”
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[24] Shea v TRUenergyServices Pty.Ltd. ( No.6) [2014] FCA 271 ( Dodds Streeton J)
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Even if it is accepted that the conversations that she was having with Mr Nunn and Mr Batish regarding Mr Francasio had “potential implications for the complainant’s employment,” [25] having heard the evidence of Mr Nunn and Mr Batish in relation to those conversations, the evidence does not support a finding that the reasons for termination included a reason based on the fact that the applicant raised issues or concerns in relation to Mr Francasio and/or her workload.
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[25] Walsh v Greater Metropolitan Cemeteries Trust (No 2 ) [2014] FCA 456 [42].
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In considering whether the respondent has displaced the presumption in s.361 of the Fair Work Act, I have regard to State of Victoria (Office of Public Prosecutions) v Grant,[26] where 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 Part 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] HCA 41. 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 nonproscribed 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.
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[26] [2014] FCAFC 184 .
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I accept the evidence of Mr Nunn, the decision maker in this case, having seen him in the witness box that he was acting for non-proscribed reasons when he terminated the employment of the applicant.
For these reasons each of the applicant’s claims fail, and I make orders dismissing the applicant’s application.”
MAXUTOVA v NUNN MEDIA PTY LTD [2017] FCCA 2336 delivered 26 September 2017 per McNab J