The CFMEU has sought special leave from the High Court of Australia to appeal against an adverse action decision involving the dismissal of an employee who had exercised his workplace right to take time off for sick, carer’s and parental leave prior to the termination.  Until that application is determined, unions are likely to continue to test the boundaries of the general protections provisions contained in the Fair Work Act 2009 (Cth) (FW Act).

What happened?

The CFMEU alleged that an employer engaged in adverse action on two occasions by changing an employee’s roster from a weekend to a weekday after a series of authorised absences from work.  The employee was absent for almost 30 days between December 2007 and September 2010 on various forms of personal/carer’s leave.  All (but one) of these absences were in accordance with his entitlement to personal/carer’s leave under the applicable enterprise agreement. 

At first instance, the Federal Circuit Court of Australia dismissed the CFMEU’s application, finding that the employer had not breached the FW Act.  The CFMEU subsequently appealed the decision.

On appeal, the majority of the Full Court of the Federal Court of Australia found no issue with the primary judge’s ruling that the employer was motivated by the ‘lack of predictability’ in the employee’s absences rather than the employee’s exercise of his workplace right to take leave.

However, in a persuasive dissenting judgment, Justice Bromberg said the intended protection of workers from adverse action would be ‘largely illusory if the substance, content or effect of that right produced when the right is put into practice provides an innocent reason for the taking of adverse action’. 

The CFMEU has now applied to the High Court of Australia seeking special leave to appeal.

Lessons for employers

If the CFMEU is granted leave to appeal to the High Court, there is a real possibility that the High Court will uphold Justice Bromberg’s strong dissenting opinion in whole or in part.  This has the potential to result in a narrowing of the effect of some of the employer-friendly aspects of previous High Court decisions relating to general protections provisions.

In the meantime, the differences of opinion between the members of the Full Court of the Federal Court is likely to encourage employees to continue to test the boundaries of the general protections provisions, in particular where there is a temporal connection between adverse action and a protected attribute.  As such, it is critical for employers to ensure that the reasons for any form of adverse action (including dismissal and performance management) are carefully documented, and that those reasons do not include a prohibited reason.