Sacked after making complaint: $157K payout

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Sacked after making complaint: $157K payout

A senior IT technician who was dismissed after complaining about non-payment of contractors has won his adverse action case.

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A senior IT technician who was dismissed after complaining about non-payment of contractors has won his adverse action case. 

The Federal Circuit Court of Australia awarded compensation of $157K.

Background


Spiros Fatouros was employed in various senior roles, including senior technical consultant and general manager, by Broadreach Services (the respondent) from 30 March 2008 to 22 August 2016. He had extensive work experience in the IT and systems engineering fields. 
 
In about October 2014 Broadreach was taken over by Electroboard Proprietary Ltd (ELB). In January 2015 Mr Fatouros began reporting to Marie Kaliviotis who became CEO of both Broadreach and ELB. 

Mr Fatouros expressed concerns about non-payment to a subcontractor who was owed $30,000 and $150,000 for different projects. He sent two emails to Ms Kaliviotis and other executives about his discontent with the non-payment of these invoices. In one of the emails he said he believed Ms Kaliviotis was not working in the best interests of the company. 

On 19 August 2016 Mr Fatouros received a letter stating that his employment was to be terminated.

The reasons for dismissal included that:
  • he failed to provide adequate notice of his absences from work
  • he was repeatedly reluctant or failed to follow the directions of executive staff of the respondent, particularly with regard to the reduction of the respondent’s use casual staff.
  • he demonstrated his disagreement with and lack of confidence in Marie Kaliviotis' decisions as director of the respondent.
Mr Fatouros was paid five weeks in lieu of notice.

He made an application to the Federal Circuit Court claiming that adverse action was taken against him for making a complaint.

The law 


Under section 340 of the Fair Work Act 2009 a person must not take adverse action against another because the other person exercises a workplace right.

Arguments 


The employer argued that the complaints made by Mr Fatouros related to executive decisions and were not related to his employment. 

Mr Fatouros argued that the two emails were complaints related to his employment and the right to complain was a right within s341 of the Fair Work Act 2009.

Legal question 


The court had to decide whether the complaints related to Mr Fatouros’ employment; in other words, if they were a workplace right for the purposes of the Act. 

If the complaints were found to be workplace rights, and breached, the court would have to determine the quantum of damages. 

Decision 


The court noted Mr Fatouros was dismissed because he sent emails complaining about non-payment of subcontractors and because he questioned the judgment of Ms Kaliviotis. 

Did complaint relate to worker's employment?


The court considered the employer's argument and rejected it. It held that section 341(1)(c)(ii) could not be read as excluding complaints about executive decisions.

The court emphasised why it couldn’t be interpreted like this: It stated that if a person’s employment required him or her to ensure the business honour its agreements to bankers, it could not be said that the person’s complaint is not in relation to his/her employment if that complaint criticised executive decisions which put at risk fulfilling those agreements.  
 
Judge McNab noted that unpaid subcontractors who refused to work was within the work Mr Fatouros was administering and therefore the complaints were within his employment. 

Order 


The court found for Mr Fatouros and ordered damages as follows: 
  • $131,723.22 for loss of wage, superannuation and leave entitlements 
  • $1,266.12 for expenses incurred during Mr Fatouros’ employment, and 
  • $11,581.14 for interest incurred from 22 August 2016 
The court also ordered the respondent pay a penalty of $12,500 to Mr Fatouros.
 
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