By Mike Toten Freelance Writer

An employee’s claim that he was subjected to adverse action (dismissal) for raising concerns about his pay and work flexibility arrangements has been successful. The Federal Circuit and Family Court found that the employer’s claims that he had breached safety provisions and behaved unprofessionally had been fabricated as an excuse to dismiss him.

FACTS OF CASE

The employee, a truck driver, had requested a transfer from NSW to Western Australia and a work shift pattern that fitted with the need to care for his child. He accepted a day shift position in WA on the promise that he would be transferred to an afternoon or night shift when one became available.

While he was waiting for that, the employer accused him of damaging work equipment, and failing to observe the requirement to stop and radio a fork lift driver before driving into a work yard. The employee denied both incidents.

When a night vacancy came up, the employer overlooked him because it claimed it needed to fill the vacancy immediately without having to train someone for it. It then promised to create a hybrid role for him, but never did. As a result of the latter, the employee lodged a flexible work request with the Fair Work Commission (FWC) and accused the employer of adverse action against him. He then decided to discontinue that request, but claimed he was being underpaid and threatened to conduct the Fair Work Ombudsman.

The employer responded to that by immediately dismissing him, citing “non-professional work behaviour” that breached its Code of Conduct and Safety Policy. The HR Manager claimed she had been “badgered and harassed” by the employee, and a “disrespectful” email from him was the final straw.

DECISION

The Court found that querying alleged pay underpayment and lodging a request with the FWC amounted to exercising workplace rights, but not his querying of shift start times.

If the employee had committed the safety and other breaches alleged by the employer, the employer should have investigated them, but there was no evidence of any investigation. There was only one report that led to a verbal warning, but not the “history” of breaches claimed by the employer. This led the Court to conclude that the alleged breaches had probably not occurred at all, and if they had they were not a “substantial and operative reason” for dismissing the employee.

Only one email from the employee had been “borderline disrespectful”, and even that did not amount to “badgering and harassing” the HR Manager. The dismissal letter did not mention the employee’s complaints and enquiries relating to underpayment.

Therefore, the employer took adverse action against the employee by dismissing him for exercising his workplace rights. A penalty hearing of the matter will follow.

The employee had not, however, proved his claims in relation to underpayment and pay slips.

WHAT THIS MEANS FOR EMPLOYERS

A reverse onus of proof applies in adverse action cases, ie the employer must prove it did NOT take adverse action – the employee doesn’t have to prove it did.

In this case, the employer decided to get rid of a “troublesome” employee who kept questioning its decisions and seeking to have his request for a preferred shift time granted. But the employee was entitled to ask the questions and make the request (they were “workplace rights”), and dismissing him for it amounted to adverse action.

READ THE JUDGMENT

Guthrie v Mondiale VGL Pty Ltd [2024] FedCFamC2G 384 (23 May 2024)