From the courts: adverse action and other developments

Articles Written by Jan Dransfield (Partner), Jane Silcock

At the end of March, it seemed that the Courts recognised that employees could not make vexatious complaints to found a basis for an adverse action claim. In late March, the Federal Court of Australia found that a number of workplace complaints that were not genuine or not sufficiently connected to the employee's employment could not be used to construct a basis to challenge a termination arising from a company restructure.

However, more recently the Federal Court of Australia in its judgment in Walsh v Greater Metropolitan Cemeteries Trust (No 2)[2014] FCA 456 (9 May 2014) took a far broader approach to the scope of complaints and inquiries for the purpose of adverse action protections. The situation for employers is now far from clear.

Adverse action: do employee complaints need to be genuine?

Shea v TRUenergy Services Pty Ltd (No 6) [2014] FCA 271 (25 March 2014)

In Shea, the Federal Court of Australia confirmed that an employee exercising a workplace right to make a complaint in respect of their employment must do so genuinely and not for an ulterior purpose.

In this case, an executive was retrenched in the context of an organisational restructure. The executive alleged that her employment had been made redundant because she had exercised her workplace right to make a complaint (sexual harassment allegations) in relation to her employment. However, the Court found that the complaints made by the employee had not been made in good faith, and had not been made in the terms alleged by the employee in the proceedings.

The Federal Court held, amongst other things, that in the context of an adverse action claim, the factual basis of a complaint (as an exercise of a workplace right) need not be 'true'. However, the basis for the complaint must be genuinely held by the employee and underpinned by an entitlement or right (including, but not limited to, a right in a contract of employment or under an award or legislation). A complaint that is made without "good faith" or for an ulterior purpose does not attract the protection of the general protections regime under the Fair Work Act 2010 (Cth) (FW Act).

Walsh v Greater Metropolitan Cemeteries Trust (No 2)

The recent decision of the Federal Court of Australia in Walsh v Greater Metropolitan Cemeteries Trust (No 2) now casts doubt on the limitations on complaints and inquiries imposed by Shea. In particular, the judgment in Walsh casts doubt on the proposition that complaints need to be underpinned by a right or entitlement held by the employee.

We will be issuing a further alert on the interaction and combined implication of the Walsh and Shea decisions.

Dismissal interview: a 'support person' must not be an advocate

Victorian Association for the Teaching of English Inc v Debra de Laps [2014] FWCFB 613 (19 February 2014)

A Full Bench of the FWC has confirmed that a 'support person' does not include the role of an advocate under the FW Act.

In this case, the employee was directed to attend a meeting to discuss allegations of poor performance and misconduct. The employer was invited to bring a 'support person' but the company advised that the support person should not act as an advocate or speak on behalf of the employee.

In considering the employee's unfair dismissal application, the FWC confirmed that in the absence of any other statutory obligation, the refusal of the employer to allow the employee to bring an advocate to the meeting does not constitute procedural unfairness.

This decision confirms that employers can be confident when notifying an employee that their support person is not an advocate and the support person should not speak on their behalf at a meeting that may lead to the employee's dismissal.

Important Disclaimer: The material contained in this article is comment of a general nature only and is not and nor is it intended to be advice on any specific professional matter. In that the effectiveness or accuracy of any professional advice depends upon the particular circumstances of each case, neither the firm nor any individual author accepts any responsibility whatsoever for any acts or omissions resulting from reliance upon the content of any articles. Before acting on the basis of any material contained in this publication, we recommend that you consult your professional adviser. Liability limited by a scheme approved under Professional Standards Legislation (Australia-wide except in Tasmania).

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