In a significant general protections ruling, the Federal Court has today ordered a large public enterprise software company, TechnologyOne to pay more than $5.2 million in compensation, damages and penalties to a senior executive sacked after he made bullying and other complaints.
Justice Duncan Kerr, in a general protections judgment of about 300 pages, found that the employee had established that by dismissing him, took adverse action against him because he exercised a workplace right when he complained multiple times about bullying.
He ordered TechnologyOne Limited to pay the former employee $2,825,000.00 for his future economic loss, $756,410 to compensate his forgone share options, $1,590,000 in damages for breach of contract, $10,000 in general damages and $47,000 in penalties.
The lawyers, which represented the employee, said it believes the payout is a record for such a case in the Fair Work division of the Federal Court. In setting penalties, which included $7000 against the company’s executive chair/chief executive, Justice Kerr said he “twice rejected professional HR advice” that it would be unfair the employee “on the basis of mere allegations”. He found the executive chair accessorily liable.
“In the end, [the chief executive’s] choice was to stand with the bullies rather than the bullied ” To achieve effective deterrence, CEOs in like positions need to know that such temptations as he faced are to be resisted: and that there will be a not insubstantial price for failing to do so”Justice Kerr
Finally a decision that sends a strong message to companies and directors that if you do the wrong thing, then you will, be punished, you need to pay. That dismissals that are essentially illegal, by breaching the Fair work Act, cannot be enacted by employer with little consequences, by paying or getting awarded against them a bit of “go away money”.
This case is clearly not the typical outcome of a general protections claim, (click here for see “what’s my claims worth“), but it does demonstrate that the Fair work Commission and in turn the Federal court are clearly losing patience with Employers
I keep reading General Protection decisions where employees have been dismissed from their positions in the most horrendous circumstances, lodge a general protections claim and get awarded say $10,000 with a legal bill that would have to be more than this. Finally a decision regarding a termination that set new case precedent as to what can be awarded. But before employees go to the representatives / lawyers regarding their dismissal, what would the legal expense be? In the TechnologyOne decision, some 14 hearing days, a decision of over a 1000 paragraphs, both sides represented by quality law firms, I would put both sides legal bill at over $200,000.
Historically protections from unlawful actions being taken in or in relation to the workplace have been scattered throughout legislation. The introduction of the Fair Work Act 2009 saw these provisions collected together in a single Part.
The principal protections have been divided into:https://www.fwc.gov.au/general-protections-benchbook/what-are-the-general-protections
- protections relating to workplace rights (which can be broadly described as employment entitlements and the freedom to exercise and enforce those entitlements)
- engaging in industrial activities (which encompasses the freedom to be or not be a member or officer of an industrial association and to participate in lawful activities, including those of an industrial association)
- other protections including protection from discrimination, and
- sham arrangements.
Certain persons, including employers, principals, employees and industrial associations; are prohibited from taking adverse action against certain other persons because the other person has, or exercises, a workplace right, or engages in industrial activity. Adverse action includes dismissal of an employee but also includes a range of other action such as prejudicing an employee or independent contractor and organizing industrial action against another person. Coercion and misrepresentation in relation to workplace rights and industrial activities are also prohibited.https://www.fwc.gov.au/general-protections-benchbook/what-are-the-general-protections
The Fair work Ombudsman does some good work chasing multi national companies who under pay employees, but seems obsessed in chasing coffee shops and farmers, etc and spending inordinate amount of public money doing so, perhaps funding General protection claims by employees would be money better spent, Who’s got $100,000 to fund there dismissal case, not many, but the Ombudsman does. It wouldn’t take too many decisions like the TechologyOne to bring Employers into line, and stop acting unlawfully against Employees.
A Whole New Approach P/L we are not lawyers, but very experienced workplace specialist, we have been lodging general protections claims and representing employees in the Fair work Commission since general protections and adverse action came into legislation in 1st July 2009 at the Fair work Commission. Our claims are drafted to a federal court standard, if the matter needs to be referred to the Federal Court, we have barristers that will represent you. Ring us, discuss your workplace issue, it cost you nothing, reserve your rights. Call 1800 333 666