By William Ash, Senior Associate
A recent decision of the Federal Circuit Court of Australia in Pacheco-Hernandez v Duty Free Stores Gold Coast Pty Ltd  FCCA 3734 (‘Duty Free Stores’) shows that an employer is not free to dismiss an employee during their probationary period without providing reasons for the dismissal, if a reason was that the employee has made complaints in relation to their employment or had assisted another employee in relation to their Workers’ Compensation claim. Employers also need call evidence from the actual decision-maker.
Section 361 of the Fair Work Act 2009 (‘the Act’) reverses the onus of proof in general protections dispute matters. Often, that reversal of onus has been seen as a benefit to an employer as the decision-maker need only give evidence that their subjective reason for dismissing the employee did not include a reason prohibited by section 340 of the Act to make good their defence.
In Duty Free Stores the Court started by identifying who made the decision to dismiss the applicant former employee. The Judge questioned the human resources officer at length in relation to whether it was her decision to dismiss the applicant (which she initially said it was) or whether it was the decision of the applicant’s manager who was not called to give evidence.
As the Judge did not accept the evidence of the human resources officer that she made the decision to dismiss the applicant, there was no direct evidence to rebut the presumption that the applicant was dismissed because she made complaints and supported another employee is her Workers’ Compensation claim. The Judge drew an adverse inference from the decision-maker not being called to give evidence. The Judge also suggest that, even if he had accepted that the human resources officer made the decision to dismiss the applicant, the reasons she referred to in her evidence were considered so brief and general so as not to exclude a reason was one of the prohibited reasons.
For further information, please do not hesitate to contact:
|Harold Downes | Partner
T: +61 7 3228 0457
|William Ash | Senior Associate
T: +61 7 3228 0469