Adverse action: sign agreement or ‘you’ve resigned’

Cases

Adverse action: sign agreement or ‘you’ve resigned’

The Federal Circuit Court has found that an employee had been dismissed for refusing to sign an employment agreement that would have had the effect of undercutting his award entitlements.

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The Federal Circuit Court has found that an employee had been dismissed for refusing to sign an employment agreement that would have had the effect of undercutting his award entitlements.

[Full text of this case: C v E & M Business Trust T/a Yellow Brick Road Service Group [2013] FCCA 10 (12 April 2013)]
 
Justice Whelan found the employee wanted to change his employment relationship — in particular, he wished to be removed from a sales commission remuneration system. The directors rejected all of his claims.
 
After further discussions and differences of opinion, the directors demanded that he sign the contract and that his failure to do so meant he was ‘leaving of your own accord’.
 
Adverse action established
 
Justice Whelan rejected the directors’ argument that it was a negotiation process:
‘What was the reason for the termination?.. If the Court accepts that the Respondent terminated the Applicant’s employment, the onus is then on the Respondent to establish the reasons for the termination. In this matter, the Respondent’s evidence was to the effect that it did not terminate the Applicant’s employment. If that is not accepted, the Respondent has provided no other evidence as to why the employment was terminated. It has therefore not discharged the onus in s.361 of the Act.'
Conclusions
 
Her Honour concluded:
‘I am satisfied on the evidence that:
  • The Applicant was entitled to the benefit of the Cleaning Services Award 2010 and the Fair Work Act 2009 (Cth).
  • The Applicant’s employment was terminated by the Respondent.
  • The Respondent has not established that the termination of the Applicant’s employment was not for a reason or reasons which included his entitlement to the benefit of the Award and the Act.
… The Applicant seeks that a penalty of $20,000.00 be imposed on the Respondent.
 
… The Applicant is given 14 days to file and serve submissions in writing in support of the penalty. The Respondent is to have a further 14 days to make any submissions in reply …’
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