Don’t run whenever an employee says that they were dismissed because they made a complaint

Recently, the Federal Circuit Court determined that an employee who was dismissed by the Regional Health Care Group was dismissed not because he had made a complaint about his employment but because of his performance and conduct.

Background

The employee alleged that he was subject to bullying and harassment by his supervisor at the warehouse where he worked for the employer. The employee sought to report the incident to senior management. The employer subsequently investigated the incident while the employee was stood down. The employer dismissed the employee for misconduct arising out of the investigation. The employee alleged the dismissal was because of his complaint. The employer alleged that he was the aggressor in the incident and dismissed him for that reason.

Findings

The Court considered the evidence and acknowledged there were some inconsistencies in the evidence given by the employer. However, they “only represented the vagaries of human recollection” but were otherwise straightforward.  On the other hand, the Court found the employee’s evidence was evasive and, at times, incorrect. 

The Court held the fact that the employer could have called further witnesses, did not entitle it to make adverse findings against the employer.  Adverse findings would only be made if the absent witness were required to explain or contradict something, not when that witness would give cumulative evidence. The absent witnesses would only give cumulative evidence so no adverse findings were made by their absence. 

The employee also alleged that employees other than the actual decision maker made material contributions to the ultimate decision to dismiss him and that the ultimate decision was a collective undertaking.

The Court, applying existing authority, recognised that more than one person may be the decision maker particularly where an assessment process is dispersed through more than one person.  In those circumstances, then the reasoning of each person is relevant.  However, the Court also recognised that witnesses who gave statements as part of an investigative process are not part of the decision-making process and their reasons are not relevant.   

Finally, on the facts, the Court found that the employee’s complaint did not form part of the employer’s reason for dismissing the employee. Rather, it was the employee’s poor behaviour that was the substantial and operative reason for his dismissal.  

Lessons for employers

Although the general protections provisions are reverse onus of proof provisions, if the employer can provide good credible evidence, such as in the present case, that the reason for the dismissal was because of the employee’s performance and/or conduct and not because the employee made a complaint, then the employer will have reasonable prospects of defeating the claim.

Importantly, the Court reinforced that:

1. where an assessment process is dispersed through more than one person, collectively they make the decision and then the reasoning of each person is relevant;
2. witnesses to the incident do not form part of the decision-making process, even though their evidence may be taken into account in the decision-making process; and
3. every person who witnessed the incident is not required to give evidence and an adverse finding would not be made against the employer if one or more persons are absent, unless those persons can provide different evidence to explain or contradict evidence provided which has not been explained or contradicted by others who have provided evidence.

Ibarra Campoverde v Regional Health Care Group Pty Ltd [2017] FCCA 1502 30 June 20017

If you would like to know more about this case or obligations on redundancy, please contact National Workplace Lawyers on (02) 9233 3989.

National Workplace Lawyers

Note — this is for information purposes only and does not purport to be comprehensive or to render legal advice.