You're fired! Who has a valid adverse action claim?

Cases

You're fired! Who has a valid adverse action claim?

A manager questions the validity of a workplace practice and is sacked. An academic clashes with management and loses his job. Which one has a legitimate adverse action claim?

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Identifying a workplace right that has been breached is an important step in substantiating a claim for adverse action. These cases illustrate a success and a failure by the employee-litigants.

Challenge to work practices – 'arguable' workplace right


The Federal Circuit Court has examined whether an employee’s challenge to his employer’s work practices and his subsequent dismissal amounted to adverse action.

[Full text of this case: E v Trilab Pty Ltd [2014] FCCA 2464 (30 October 2014)]

The court refused to reject the adverse action application by the employee. Justice Lucev found the testing company failed to prove that a manager's claim he was unlawfully dismissed for exercising a workplace right under s341(1)(c) of the Fair Work Act had no reasonable prospect of success.

The matter was adjourned to a directions hearing.

Background

The manager was dismissed when he questioned its use of dry-testing on soils. He said the practice did not comply with the relevant Australian Standard, and the company should be using wet-testing instead.

He was dismissed shortly after this for asking questions about test methods.

The company argued that the employee's comments about the testing did not create a workplace right.

The court referred to some different approaches taken by courts considering workplace rights and pointed out that a complaint or inquiry need not arise from a statutory, regulatory or contractual provision before it can be a complaint or inquiry in relation to a person's employment under s341(1)(c)(ii).

There need only be an indirect nexus with a person's terms or conditions of employment to come within the provision's scope. It could be a complaint about the conduct of another person in the workplace or about a workplace process which concerns or has implications for an employee's employment.

Arguable

Justice Lucev said the employee's question was arguably capable of being characterised as a complaint or inquiry in relation to the employee's employment.

The court said the employer’s assertion the employee had no reasonable prospect of success must fail.

E v Trilab Pty Ltd [2014] FCCA 2464 (30 October 2014)


Academic's emails justified non-renewal of contract


The content of emails sent by an academic to management resulted in his suspension and the non-renewal of his contract. The Federal Court considered the actions by college management were justified and did not amount to adverse action.

[Full text of this case: K v Australian College of Natural Medicine (No 2) [2014] FCA 1124]

In 2013 issues developed between the program leader (applicant) and his supervisor, the college's education director. There were clashes over instructions from the education director. The applicant sent emails to the director of the college warning that if he blocked changes proposed by the applicant, he would make a formal complaint to the US ambassador to Australia.

He was suspended on full pay pending the completion of an independent external investigation in early 2014. The investigation found the program leader had failed to observe a reasonable direction and had behaved inappropriately and unprofessionally.

The applicant declined to answer these allegations in writing or to attend a meeting to discuss them. The college told the program leader it would not  renew his contract.

Alleged adverse action rejected

The program leader sought to argue in the Federal Court that the college had taken action against him because of previous complaints he had made about its academic standards and procedures.

Justice Tracey said the terms of the emails which led to suspension and the investigator's report justified the college's actions.

K v Australian College of Natural Medicine (No 2) [2014] FCA 1124  

The bottom line: In order to bring an adverse action case before a court a complainant must establish there has been adverse action taken because of the exercise of a workplace right.

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