The Federal Court has dismissed an employee’s general protection case, saying that the complaint must be based on a genuinely-held grievance and should not be made for an ulterior purpose.
The employee was made redundant as part of an organisational restructure and for operational reasons. The employee and her personal assistant were the only employees retrenched as part of the reorganisation. The employee alleged that she was retrenched because in February 2012 she made complaints about the employer’s investigation into sexual harassment allegations against another employee. The investigation was completed by an external party, which found that no sexual harassment had taken place.
Justice Dodds-Streeton found that the employee’s claim had “no reasonable basis”. She said that it is not necessary for the grievance to be true, or capable of ultimate substantiation. However, the making of the grievance must “be genuinely held and, where it takes the form of an accusation of fault, the complainant must believe it to be valid.” Justice Dodds-Streeton went on to hold that the employee’s complaint about deficiencies in the investigation was not a genuine grievance communicated in good faith. She also stated that she found the employee was not an “impressive, persuasive or reliable witness.”
Key points for employers:
- Employers should ensure they have grievance and dispute procedures in place that can be implemented where an employee believes he or she has been wrongfully made redundant.
- Employers should also ensure that a decision to make an employee redundant is objectively justified, such as in this case, where it was for operational reasons.
A link to the decision can be found here: Shea v TRUenergy Services Pty Ltd (No 6)  FCA 271