Under the Fair Work Act, it is unlawful for an employer to take adverse action against an employee for a protected reason.
An interesting feature of the general protections provisions is the ‘presumption’ that the adverse action was taken for a protected reason unless proven otherwise. Accordingly, there is a ‘reverse onus of proof’ which means that the employer bears the onus of establishing or disproving that the action was taken for an unlawful reason.
Ultimately, the practical application of the reverse onus of proof means that the employer is required to lead evidence from the ‘decision maker’ to establish what was in the decision makers mind at the time the action was taken.
A recent case before the Federal Circuit and Family Court of Australia has served as an important reminder that if an employer fails to lead direct evidence from the decision marker, it is extremely difficult to discharge the reverse onus of proof.
The Court has recently found that an employer took adverse action in dismissing an employee because the employee exercised a workplace right and failed to discharge the reverse onus of proof as required by s 361 of the Fair Work Act 2009 (Cth) in the case of Guthrie v Mondiale VGL Pty Ltd [2024] FedCFamC2G 384 (23 May 2024).
The Facts
In the case of Guthrie v Mondiale VGL Pty Ltd [2024] FedCFamC2G 384, Mr Guthrie lodged a general protections claim against his previous employer Mondiale alleging that he was dismissed as a result of him exercising the following workplace rights:
- querying his pay slips; and
- requesting flexible working arrangements.
Mr Guthrie had requested, due to his familial obligations, to alter his working hours to start later. He specifically requested afternoon/night shifts. Mondiale informed him that he would be priority for the next available role. Time passed and Mondiale formed Mr Guthrie that it overlooked him for a night shift position as they needed to fill the role immediately and Mr Guthrie would have required to have been trained for the role. Following this, Mondiale informed Mr Guthrie that he would remain as a priority for the next available role and that they would create a hybrid position for him with a later start time. This hybrid role never eventuated.
As a result, Mr Guthrie brought his flexible working request to the Fair Work Commission who advised him that he would need to undertake dispute resolution as per clause 10 of the Road Transport and Distribution Award 2010. Mondiale agreed to undertake dispute resolution and Mr Guthrie dropped his claim. However, no such dispute resolution unfolded.
Additionally, Mr Guthrie believed he was being underpaid and engaged in over 6 weeks of email exchanges with Mondiale’s HR Manager. The email exchanges boiled over when Mr Guthrie stated that he would discuss the alleged underpayments with the Fair Work Ombudsman.
Following these communications, the HR manager met with a partner at Mondiale, and she recommended Mr Guthrie’s dismissal. Following this discussion, on 9 December 2019 Mr Guthrie was dismissed. His dismissal letter stated the reason for dismissal was due to “nonprofessional work behaviours displayed in the workplace which contravene the company Code of Conduct and our Health and Safety HSEQ Administrative Three Strike Policy”.
Findings of the Court
The Court has found that the dismissal of Mr Guthrie was not based on the reasons stated in the dismissal letter, but rather because the HR Manager viewed his queries about pay and flexible working conditions as “badgering” and “harassment”.
After a review of the correspondence, the Court found that nearly all of the emails between the employee and the HR manager were “respectful in their approach” and only one email on the 18 November may be considered to border disrespect.
Accordingly, the Court found that Mondiale failed to discharge the reverse onus of proof. It was held that there was no evidence put before the Court that the decision makers of Mr Guthrie’s termination had excluded his workplace rights in determining his termination. As a result, the Court was “satisfied that adverse action was taken again Mr Guthrie by Mondiale by dismissing him from his employment because of the exercise of the workplace rights asserted”.
As a result, the Court found that s 340(1) of the Fair Work Act had been breached as adverse action was taken against the employee for exercising his right to request flexible working conditions and querying his pay slip.
Key Takeaways
For employers, this case serves as a reminder that to successfully defend a general protections claim, the reverse onus of proof must be discharged with sufficient evidence. Further, it draws attention to the fact that when the termination process is conducted inappropriately, it can leave your business exposed to legal action. Employers must exercise extreme caution when dismissing employees, especially if it is in connection to the employee exercising an alleged workplace right.
Employees are to note that if they believe that they have been terminated for exercising a right in the workplace, they are able to bring a general protections claim before the Court.
If you are thinking about lodging a general protections claim, reach out to the Workplace Team at Chamberlains for bespoke advice. Alternatively, if you are an employer and are facing a general protections claim, reach out to the team for guidance and assistance.
This article was prepared with the assistance of Challita Tahhan*
If you have any questions or concerns please contact our Workplace Law Director Angela Backhouse on 1300 676 823