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Employer pays for the dismissal of an employee who made work-related complaints

The Federal Circuit Court found that a Company had contravened s 340 of the Fair Work Act 2009 (Cth) (the ‘Act’) by terminating an employee for exercising the workplace right of making a complaint regarding her employment. The employee was dismissed after five months, which was within the probationary period. The Company did not give the employee a reason for her dismissal.

Notably, the Act contains a presumption that the Company terminated the employment because of the employee’s exercise of a workplace right unless the Company proves otherwise. In this case, the Company failed to prove that the termination was due to reason(s) “that did not include as a substantial and operative factor [the employee] having exercised her workplace rights.”

The relevant workplace right was the employee making complaints about her employment, including a desire to not be contacted outside of work hours via her personal email address or through text messages for work-related matters, being exhausted with the rotating roster, along with a complaint of having been disrespected by her colleagues.

An affidavit of a discussion between an area manager and a HR manager raised concerns with the employee, including “behaviour in the workplace, specifically the fit within the team, respect for Management, following instructions and point of sales errors”. This case highlights the potential issues with the “brevity” and “generality” of such statements, as the Court found that “it is difficult not to conclude” that the employee exercising her workplace right of complaints about her employment constituted or at least formed a substantial part of the “behaviour in the workplace”.

This case also raises the pitfalls of a lack of significant evidence, as the Court inferred that the reason for not calling an area manager to give evidence, who was one of the persons who decided to terminate the employee, was because her evidence would not have been favourable to the Company. In addition, the Court inferred that the lack of evidence given by the HR manager regarding her reasons for the dismissal and whether these reasons included the employee making complaints, was also because such evidence would not have been favourable to the Company.

The Company was ordered to pay the employee over $10,000 which included eight weeks’ wages, accrued annual leave, superannuation and interest. In making this order, the Court acknowledged the issues in the employment relationship and that the employee would only have remained working for the Company for another eight weeks if she had not been terminated when she was.

Pacheco-Hernandez v Duty Free Stores Gold Coast Pty Ltd [2018] FCCA 3734 (17 December 2018)

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