Situations often arise where an employer has to consider taking action against an employee. This could include the provision of a warning, suspension, or even the termination of employment. Although it may be unconnected to the reason for deciding to take the action, what if, for example, the employee has been away from work through illness, or has had to care for a child?

While the employee’s situation should not prevent the action being taken, the employer needs to be able to demonstrate that any decision to take action, was motivated by a legitimate reason, and not because the employee has exercised a “workplace right” (such as legitimately taking sick leave, for example).

Failing to handle this type of situation correctly can lead to expensive claims being brought against an employer, and possibly its officers and managers, for breaches of Part 3-1 of the Fair Work Act. In such cases, not only can compensation and/or the reinstatement of employment be ordered, but the employer and individuals involved in the relevant conduct can be subjected to the order of significant civil penalties.

In a recent decision of the Federal Court of Australia in Metcalfe v. Clayton Church Homes Incorporated and Others, an employee brought an adverse action complaint against her employer, its CEO (the CEO), and the manager of its residential facilities (the Manager).

The employee claimed that her employment had been terminated because she had exercised workplace rights. In particular, the employee claimed that the CEO and the Manager, in response to her claiming workers’ compensation (related to her being allergic to a resident cat), moved to terminate her employment.

The employer was an aged care facility at which the employee was engaged as a nurse.

The employee also alleged that the workplace was unsafe and made a complaint to the relevant workplace health and safety authority.

Apart from the eventual termination of her employment, the employee clamed that the employer through the CEO and the Manager, targeted her “for complaint and admonishment” with respect to such matters as:

• criticism and instruction in relation to the completion of her timesheets, and
• a failure to minimise the employee’s exposure to “cat dander” in the workplace (leading to her experiencing allergic symptoms).

The employee also alleged that there was a failure to ensure that an investigation into a disciplinary matter involving her was “undertaken independently and impartially”.

In matters such as this, a reverse onus applies. This meant that the employer in particular was required to disprove that any action taken against the employee was taken for one of the prohibited reasons alleged, and primarily in this case, because the employee exercised a workplace right in bringing a claim for workers’ compensation.

The employee ultimately sought orders for reinstatement, compensation and pecuniary penalties.

The employee failed in arguing that she had been subjected to adverse action for prohibited reasons.

The investigation into the employee for allegedly engaging in wilful misconduct in administering medication to a patient without authorisation (which led to the termination of her employment) was found by the court not to have been motivated by her workers’ compensation claim, nor by her complaint to the relevant workplace health and safety authority.

Conclusion

Although the respondents to this claim were successful in their defence, employers need to be careful about any “adverse action” they seek to take (such as a disciplining an employee, cutting their shifts, or terminating their employment, for example), or engaging in potential “unlawful discrimination”, in circumstances where the employee has, for example:

1. exercised a “workplace right” (e.g. lodged a workers’ compensation claim, taken sick leave, or made enquiries about their pay, etc.); or
2. has or is presumed to have an attribute which could give rise to an allegation of unlawful discrimination (e.g. has an illness, is required to care for their children, or is of a particular religious faith or political opinion, etc.).

Employers need to carefully consider the real reasons for taking relevant action in relation to the employee, before taking it, and should consider obtaining legal advice if there are concerns that a claim might arise.