By Clayton Payne, Special Counsel
The Fair Work Act provides that companies and individuals can be held liable for compensation orders and penalties if they take adverse action against a worker for having, exercising, or not exercising, etc., a “workplace right”. This adverse action could include altering an employee’s position to their prejudice or dismissing them, for example.
A workplace right could range from a right to take sick leave, to making a complaint under a workplace law, or, as in the case discussed below, undertaking relevant community service activities.
In Campbell v. Aero & Military Products P/L, the worker brought an adverse action complaint against his employer, alleging that his employment was terminated because of his involvement in Country Fire Authority (CFA) operations in Victoria.
The worker’s employment was ostensibly terminated because of redundancy. This occurred in the context of the worker receiving at least one written warning in relation to performance or conduct. The employer was a relatively small organisation, and the employee that was chosen to be kept by the employer over the worker was considered to be a better employee.
The employer alleged that the worker’s performance deteriorated after the first year of his employment. It also claimed that there was enthusiasm about the worker signing up for volunteering. However, the employer claimed that the worker was also told that he would be paid for time off to attend to “extreme events such as a bush fire or flooding … but not for every situation such as bringing down a cat stuck in a tree”, which other CFA staff could handle.
It was also claimed by the employer that it instructed the worker not to bring his CFA pager or phone into the laboratory at the workplace because they could interfere with the sensitive electronic test equipment located there. By the same token, the employer claimed that it never instructed the worker not to bring the CFA pager to work as the worker had alleged.
The employer claimed that the worker was asked to advise his manager when he was going to be called out by the CFA in order to determine whether laboratory work would need to reallocated, noting that only the worker and the manager were trained in the relevant work. In response, the employer claimed that the worker responded by saying that he could leave work without giving notice or obtaining permission.
Evidence was also given by the employer that there had been a downturn in business and staff had been advised that, while every effort was being made to prevent this from happening, some positions might be made redundant.
Ultimately, it was determined that the worker would be made redundant over another co-worker because of the worker’s alleged poor work performance and failure to follow directions.
Commissioner Burchardt ultimately found that the decision by the employer to terminate the worker’s employment had nothing to do with the worker’s activities in relation to the CFA.
Despite the finding, the Commissioner also found that the capacity to take eligible community service activity was capable of giving rise to a “workplace right”. This could give rise to an adverse action complaint, if for example, a worker’s employment was terminated because they sought to exercise it.
The Commissioner also found:
“The (employer’s) position that the (worker) would only be allowed to attend major emergencies was in my view entirely reasonable and other leave would not, given the small size of the (employer’s) operations and the very important role played in it by the (worker) … ”.
The application was dismissed.
A reverse onus will normally exist in complaints of this type, meaning that the employer will need to disprove, on the balance of probabilities, that it took any relevant “adverse action” against an employee for an illegitimate reason (e.g. for exercising a workplace right).
In this case, the employer was able to lead evidence that there were performance and conduct issues relating to the worker, aside from any matters relating to his community service activities, and that these fed into its decision to make the worker redundant. This occurred in circumstances where the employer had already flagged that there might be redundancies in the workplace, and where the other employee who was not made redundant was shown to be a better employee.
Such complaints may not always end as favourably for the employer, and care may need to be taken when considering how a termination is to be effected, or the reason why it is being effected in the first place. At this juncture, an employer should consider obtaining appropriate advice which may save it from expensive litigation in the long run.
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