In a typical general protections claim made by an employee under the Fair Work Act, the employee alleges that the employer took adverse action against him or her because of a proscribed reason e.g. the employee exercised a workplace right. Once this allegation is made, the employer has the onus of proving on the balance of probabilities that the action was not taken for the proscribed reason. If the employer fails to discharge the onus, the Court will presume that the action was taken for the proscribed reason.
A recent decision highlights the importance for employers in defending general protections claims to ensure that the key decision-maker gives evidence in the case as to the true reason for the action.
In Burke v Serco Pty Ltd ( FMCA 1134 (29 November 2012)) a client services officer was dismissed without being given a reason for dismissal. The employee claimed the reason was because he made complaints about the way in which Serco exposed him to an unsafe working environment and unsafe work practices, and because he made a workers’ compensation claim.
The Court accepted that the employee had made those complaints prior to being dismissed. It also noted that if the making of those complaints was a factor in the decision to dismiss, the company would have contravened the general protection provisions of the Fair Work Act.
The Court noted that the Act required it to presume that Serco took the alleged adverse action – dismissing the employee - for the reasons claimed by the employee, unless Serco proved that it did not take dismiss the employee for those reasons.
Ordinarily in a case such as this, evidence about the reason that an employee was dismissed is given by the person who made the dismissal decision. However Serco did not call as a witness any person with personal knowledge of the reasons for the dismissal. Therefore, the Court concluded that Serco had not discharged the onus upon it to show that it did not dismiss the employee because he had made the complaints about safety and lodged the workers’ compensation claim. As a result the Court ruled that Serco had contravened s.340 of the Fair Work Act 2009 in that it has taken adverse action against the employee because he exercised a workplace right to make those complaints and lodge the WorkCover claim.
The lessons for employers from this decision are that if they are contemplating taking an action that may be detrimental to any of their employees they need to consider:
- Who will make the decision to take the action?
- What are the grounds for taking the action?
- Are the grounds unlawful?
- Will the decision-maker be able to give evidence as to the real reason for taking the action?
- Is there any other evidence that would erode the credibility of the decision-maker’s evidence i.e. documents or e-mails suggesting different factors motivated the decision-maker, failure to follow internal processes for no explicable reason, or a different (or no) reason given to the employee for taking the action.