In Perez v Northern Territory Department of Correctional Services (2016) FCA 476 delivered 6 May 2016 the Federal Court on an appeal from the Federal Circuit Court held that a properly initiated performance review did not constitute adverse action in breach of the general protections.
“There are circumstances in which the conduct of a formal performance management review may constitute a form of adverse action. See, for example, Construction, Forestry, Mining and Energy Union v Pilbara Iron Company (Services) Pty Ltd (No 3) (2012) FCA 697 However, the circumstances disclosed by the evidence in this case differ in material respects from those in CFMEU v Pilbara Iron Company.”
However the court did conclude that a recommendation to dismiss an employee, or not renew a contract, could and did count as adverse action and that the employer had failed to discharge the reverse onus of proving that the adverse action was not improperly motivated and therefore was unlawful.
“In my opinion, the Judge should have found that Ms Andrews’ recommendation did constitute a form of adverse action. …It is plain that the first respondent did not discharge the s 361 onus of showing that Ms Andrews had not made the recommendation because of the appellant’s exercise of his workplace right to make a complaint. Ms Andrews’ affidavit containing her evidence in chief did not even advert to the question, let alone state Ms Andrews’ reasons for the recommendation.
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