By Mike Toten Freelance Writer

An employer accepted a complaint about an employee by a co-worker and dismissed him without seeking the employee’s version of events. The employee had previously made complaints to management, and complained again about how the co-worker’s complaint was handled. The result was a successful adverse action claim by the employee, who received compensation of $130,000. A financial penalty on the employer may also follow.

Facts of case

The co-worker, a learning and development facilitator, made a complaint about the employee (her manager) that alleged that he bullied her in the following ways:

  • Not inviting her to work “catch-ups”
  • Failed to check in with her after she returned from taking 4.5 months’ leave to deal with mental health issues
  • Failing to communicate with her about various work matters
  • Harassing her while she was on leave by telling her about, and involving her in, disputes with his own line manager

The co-worker claimed that this added to her levels of stress and anxiety.

The employee had already received a written warning and a six-month ban on applying for other positions in the company following a previous complaint by the same co-worker.

The employee in turn lodged a complaint against his line manager for not investigating the co-worker’s claim properly, followed by an adverse action claim and a “stop bullying” application in the Fair Work Commission. He had previously made complaints relating to safety and security.

The employer then dismissed him, claiming he had bullied and victimised the co-worker after she made her first complaint against him and posed a threat to her health and safety. The employee claimed that the employer had used the second complaint against him as an excuse to dismiss him.  The employer denied that the complaints made by the employee were a reason for dismissing him.

The employee claimed that he had met with the co-worker several times to discuss how she was feeling about being at work, and what her work aspirations were. He added that, after the warning that followed her first complaint, he had been cautious and been advised to limit his interactions with her.

Decision

The Court rejected the employee’s claim that the employer took adverse action against him because he complained about his line manager or that he was unfairly treated after the co-worker’s first complaint. The Court said that his conduct that led to that first complaint was “inappropriate and unprofessional”.

But in relation to how the employer reacted to the co-worker’s second complaint:

  • The HR Department asked the co-worker to provide specific examples of how she had been mistreated but did not receive any.
  • After the employee provided his version of events, the employer did not interview the co-worker or seek her reaction or check anything, claiming that it wasn’t considered necessary.

The Court found that the employer failed to discharge its onus to prove that dismissal had not been made for a prohibited reason (exercising a workplace right to complain about a line manager).  The employee’s complaints were a substantial and operative reason for the employer taking adverse action against him.

It awarded compensation of $120,000 for economic loss and $10,000 for non-economic loss, a total of $130,000.

What this means for employers

When an employee makes a claim of adverse action being taken for a prohibited reason, a reverse onus of proof applies. It is the employer that has to prove that it did not take adverse action for a prohibited reason – the employee does not have to prove that it did.

In this case, the employer did not investigate the complaint properly, but used it as an excuse because it was keen to get rid of the employee.

Read the judgment

Parsons v Serco Citizen Services Pty Limited [2024] FCA 754 (11 July 2024)