Consider this: An employer refuses an employee's application for two days annual leave. The disgruntled employee storms off and mutters "fine, I'm going to be sick anyway". The employee then takes sick leave, which had coincided with the period in which he had been refused annual leave. The employer dismissed the employee on the basis that it believed the employee had dishonestly taken the sick leave. It was found that the employer had been mistaken; the employee was in fact genuinely sick.
In good news for this employer, the employee's General Protections application was ultimately unsuccessful on appeal before the full bench of the Federal Court of Australia (Construction, Forestry, Mining and Energy Union v Anglo Coal (Dawson Services) Pty Limited  FCAFC 157), including because the employer had given evidence that it would not have dismissed the employee, had they believed the sick leave was genuine. In other words, because the employer's "hunch" had not been based on any prohibited grounds, the employer's evidence had otherwise discharged its onus under section 361 of the Fair Work Act 2009 (Cth).
The key points of this decision include that a court is likely to examine the subjective, operative and immediate reasons why an employer took any action against an employee; such factors are likely to be determinative as to whether or not the employer had taken adverse action for a prohibited purpose, in breach of the General Protections provisions of the Fair Work Act 2009 (Cth).
Lessons for employers
The number of General Protections claims has increased since the introduction of the Fair Work Act 2009 (Cth) and the case law remains uncertain.
- Employers should keep detailed records of timelines and decisions associated with any decision-making process. If disciplinary action or dismissal is being contemplated, employers should consider the reasons for taking, including by ensuring that such action is not being taken for a prohibited reason, and be able to explain those reasons before a court.
- Employers should be ready to wheel out the ultimate decision-maker; because in many cases, their evidence is likely to be key in providing any defence to a General Protections claim. Whether or not a "hunch" will withstand court scrutiny and / or provide any defence may not be a foregone conclusion.
- The remedies available to employees in relation to General Protections claims remain quite broad, including, compensation (of which there is no cap), reinstatement and injunctive relief. In addition, the maximum penalty for each breach of the General Protections provisions is currently $54,000.00 for a corporation and $10,800.00 for an individual (some of which may go to the aggrieved employee).