In Eriksson v The Commonwealth  FMCA 964, the court considered whether the termination of an employee’s employment constituted adverse action.
Meeli Kersti Eriksson (the Employee) was employed by the Department of Health and Ageing (the Department). In 2002, the Employee suffered from a work related injury and was on restricted duties until 2006 (with some periods of total incapacity), and then certified as unfit for all work from 1 December 2006.
After unsuccessful attempts to return the Employee to the workplace, the Department sought to have the Employee retired on the ground of medical invalidity, which required an Invalidity Retirement Certificate to be issued by Australia Reward Investment Alliance (ARIA), as Trustee of the Public Sector Superannuation Scheme. On the basis of medical opinion obtained by ARIA, the Invalidity Retirement Certificate was granted in 2007.
The Employee was subsequently notified that her employment would be terminated in accordance with section 29(3)(d) of the Public Service Act 1999 (Cth) (PS Act).
Section 29(3) of the PS Act provides:
For an ongoing APS employee, the following are the only grounds for termination:
- inability to perform duties because of physical or mental incapacity;
The Employee sought reconsideration of some of the procedural decisions preceding termination and the Department delayed the termination to allow her time to present new evidence on three occasions. Notwithstanding the Department’s decision to delay a decision to terminate employment, the Employee failed to present the required additional evidence.
The Employee’s employment was ultimately terminated with effect from 8 January 2010.
The Employee made an adverse action claim to Fair Work Australia pursuant to the Fair Work Act 2009 (Cth) (FW Act) on the basis that her employment had been terminated because of a workplace right (section 341) and/or her disability (section 352).
The Employee claimed that she had exercised her workplace right to:
- seek an assessment to undertake a rehabilitation program, and
- have the retirement decision reconsidered on the basis that she had become fit to return to work.
In this case, Federal Magistrate Burnett found that the termination of the Employee’s employment did not constitute adverse action.
The action to terminate was not taken “because of” the Employee’s workplace right to request an assessment to undertake a rehabilitation program under the Safety, Rehabilitation & Compensation Act 1988 (Cth) (SRC Act) or her right to request reconsideration of the Invalidity Retirement Certificate.
This was clear on the facts, as the Court found that the history of events demonstrated that the termination decision made by the Department predated any of the actions taken by the Employee in pursuing her workplace rights, particularly as the Department had notified the Employee in early 2007 that it was intending to retire her on grounds of invalidity.
Importantly, his Honour noted that:
“Nothing changed between the time the respondent first decided to “retire” the applicant on invalidity grounds and the actual dismissal giving effect to that decision”.
Further, the Employee’s request to obtain a rehabilitation program under the SRC Act was only sought after the decision to terminate employment had already been made.
This is a useful decision that demonstrates that a proper process undertaken to manage and deal with long term employee issues, including absence from work, will not likely result in adverse action.
It is important for Departments and Agencies to:
- follow procedures and policies,
- ensure that employment decisions are made for reasons unrelated to what might be claimed to be a “workplace right”, and
- ensure that there are records evidencing when decisions are made for the management of employees and for what reasons.