Roster change after leave request not adverse action

Cases

Roster change after leave request not adverse action

Complex legal argument surrounded a decision by a Full Federal Court that decided by 2:1 that an employer had not taken adverse action against an employee who had exercised a workplace right.

WantToReadMore

Get unlimited access to all of our content.

Complex legal argument surrounded a decision by a Full Federal Court that decided by 2:1 that an employer had not taken adverse action against an employee who had exercised a workplace right.

The employer was responding to the impact of the exercise of certain rights and not the actual exercise of those rights.

[Full text of this case: Construction Forestry Mining and Energy Union v Endeavour Coal Pty Ltd [2015] FCAFC 76 (3 June 2015)]

Justices Jessup and Perram found for the employer and Justice Bromberg dissented.

Background


The case centred on the right to take personal and carer’s leave and whether the employer adversely changed the employee’s shift due to his variable attendance record. The employee was moved from a higher paying weekend shift at a mine when he exercised those rights; making the coverage of the shift "unpredictable” in the employer’s view.

Jessup J noted the employer considered the worker had “abused the system”: he had not provided a medical certificate for a day of leave, which had been previously denied, and the employer doubted the genuineness of the claim to illness. It was for these reasons the employer moved the worker to the weekday shift.

Justice Jessup - for employer


Justice Jessup considered that the employer was reacting to the unpredictability of the situation caused by the worker – not his taking leave:

“…In this setting, the primary judge had to decide whether the earlier absences were a reason why the warning was given, and the shift change was made, on 1 April 2011. The respondent carried the onus of proof in this area, but that did not require it entirely to dissociate the adverse action taken… Put another way, the respondent [employer] might well have discharged the onus notwithstanding the existence of some connection between that action and those absences.

"What this means is that the finding which the appellant [union] must now establish was glaringly improbable is the finding that the earlier absences were not a reason for the adverse action of 1 April 2011, albeit that there may have been some connection between the two. …In my view, the primary judge’s finding now challenged by the appellant was open to his Honour on the evidence before him. It could not be described as glaringly improbable. …It follows, in my view, that the appeal should be dismissed. ..”

Justice Perram – for employer


Justice Perram noted:

“… The inquiry thrown up by s340 is not one concerned with causation but, rather, the subjective reasons for action of the decision-maker. Once that is appreciated, it is possible to accept that [the manager’s] evidence about what he was aware of in relation to Mr M’s prior attendance record is not inconsistent with a finding that it was not that record which he, himself, regarded as determinative. … [the concern was] not a single absence but a pattern of absences."

Justice Bromberg – for worker/union


Justice Bromberg considered that the distinction drawn by the majority effectively destroyed the essence of the legislative provision:

“The primary judge’s approach was based on the premise that, in terms of what motivated [the employer] to take the adverse action, M’s exercise of his workplace right to be absent from work on personal/carer’s leave could be separated from the actual absences.

"…However, to treat the exercise of a workplace right as devoid of its substance, content, or effect involves a restricted construction of s340(1)(a)(ii) which, in my view, is not supported by the text of that provision nor the discernible parliamentary intent which its context reveals.

"The intended protection of a person from adverse action, taken because the person has in fact exercised his or her workplace right, would be largely illusory if the substance, content or effect of that right produced when the right is put into practice provides an innocent reason for the taking of adverse action. If the content or an effect could never be the basis for a prohibited reason, it is difficult to identify what feature of the exercise of a workplace right would provide a basis."


The bottom line: The true motivation for taking adverse action is a difficult inquiry. The subjective nature of the exercise makes it difficult to predict the outcome of matters such as the case here.

Construction Forestry Mining and Energy Union v Endeavour Coal Pty Ltd [2015] FCAFC 76 (3 June 2015)

See also: High Court adverse action is ‘common sense’ 

Post details