Adverse action case rules husband can’t speak for their wife
An adverse action case heard by a federal court in June has resulted in a unique and telling judgement. That husbands can’t speak for their wives. The case involved a HR manager who had dismissed a worker based on a phone call he’d had with her husband. This case of adverse action rules should be compulsory reading.
But the case goes far deeper than just that. The HR manager was also found to have taken opportunistic action that denied the employee the right to seek legal proceedings for racist workplace bullying. At A Whole New Approach P/L we have been seeing this type of behaviour from employers for years. Particularly in the hotel, motel, caravan park resort industries. Also in farming and some remote locations. Any where couples work together at the same employer. Where the employer tells the male “your dismissed and that applies (tell) your wife as well”.
Employer sexist behaviour
Its sexist as well. We don’t hear of the circumstances of the employer telling the wife your dismissed and by the way tell your husband as well. Generally the perception is the employer concern is the male will do something about it. That the male is in charge, its its assumed he is the bearer of bad news.
Let’s take a look at this unique adverse action case – United Workers’ Union v Bervar Pty Ltd [2022] – which will help you understand your rights as an employee and what can constitute an adverse action by an employer. Further how this applies in a dismissal case, how the adverse action case rules applies in different circumstances.
The events leading up to the adverse action: Part-time worker clashes with management
In August 2015, Indian immigrant Talwinder Kaur commenced work at Bervar, a ready-made pizza production business based in Campbellfield, Victoria. As a part-time employee, her time at the company was without incident until March 2020, when the COVID-19 pandemic hit.
Due to the pandemic, there was a need for the company to increase production. This led to Ms Kaur’s manager asking her to perform overtime, in addition to changing her work responsibilities. During meetings discussing the changes, Ms Kaur clashed with her manager and another colleague. Following the second meeting, which discussed the fact that she hadn’t performed certain duties, Ms Kaur left the workplace mid-shift.
Ms Kaur’s walkout promoted Bervar’s HR manager, Cameron Blewett, to call Ms Kaur. This is where this adverse action case took a unique turn.
HR manager makes a suspect decision following phone call
At 1.15pm on 6 May 2020, Ms Kaur received a call from Mr Blewett. She immediately passed the phone to her husband, Mr Singh, who proceeded to have a conversation with Mr Blewett. During the conversation, Mr Blewett claims that Mr Singh told him, among other things, that Ms Kaur was never returning to work. Mr Singh, however, denied ever having said that.
He however told Mr Blewett that his wife had been subject to bullying in the workplace. That they would be taking the matter to “Fair Work”. The HR manager denied any knowledge of the alleged bullying.
At 3.10PM, Ms Kaur received an email from Mr Blewett advising that her resignation had been accepted. At 6.25PM, Ms Kaur replied to this email, stating that she had in fact not resigned. Five days later, she sent another email to Mr Blewett, asking him to confirm whether she was still employed by Bervar.
A day later, she received a reply from Mr Blewett stating that her resignation had been accepted and that she was no longer employed by Bervar. Ms Kaur subsequently made an adverse action claim against Bervar with the Fair Work Commission, via the United Workers Union.
What is an adverse action?
Before we get into the Court’s ruling on this case, it’s important to first define what an adverse action is. There are several types of adverse action. For instance, an adverse action taken by an employer against an employee, or vice versa. Also, one taken by a prospective employer against a prospective employee. An adverse action can also be taken by principal against an independent contractor, or vice versa.
The type of adverse action relevant to this case is one taken by an employer, Bervar, against an employee, Ms Kaur. In this context, it is defined as an unlawful action taken by an employer that is harmful to an employee and is motivated by a prohibited reason.
The prohibited reasons are set out in the General Protections provisions of the Fair Work Act 2009. This can include, for instance, a harmful action taken due to an employee having been on a long period of sick leave or because they exercised a workplace right. It can also include any harmful action taken for discriminatory reasons, like an employee’s sex, religion, race, etc.
Fair work Commission
Fair Work states that an employer has taken adverse action against an employee when it threatens to, organizes or takes action by:
- dismissing the employee
- injuring the employee in his or her employment
- altering the position of the employee to the employee’s prejudice, or
- discriminating between the employee and other employees of the employer.
It should be noted that the key to a successful adverse action claim is for the employee to prove the action was taken for a prohibited reason. That is, because of a protected attribute of the employee (i.e. race, religion, etc) or if they have exercised a workplace right.
Ms Kaur’s adverse action case goes to court
The key question put before the Federal Circuit and Family Court of Australia was whether Ms Kaur’s husband, Mr Singh, was authorized to terminate her employment contract with Bervar. Judge Blake ruled that he didn’t in fact have the authority to do so. Therefore, he found that rather than having resigned, Ms Kaur had been dismissed.
“The contract of employment was between Bervar and Ms Kaur,” said Judge Blake. “Under clause 10 of the contract of employment, the only parties able to terminate the contract are Bervar and Ms Kaur. That is unsurprising. It is a generally accepted principle of contract law that only the parties to the contract are able to terminate the contract.”
The days of husbands making decisions for their wives are “long gone”
Judge Blake found that Mr Blewett had failed to undertake many of the basic actions and enquiries expected of an experienced HR manager like him. He ruled that Mr Blewett had “assumed” that Mr Singh had the authority to tender Ms Kaur’s resignation and that she agreed with what he had said.
“…it was not reasonable in these circumstances for Mr Blewett to believe that whatever Mr Singh said, Ms Kaur agreed with,” said Judge Blake. “It is difficult to think in the modern age of any circumstances in which a wife can be assumed to agree with what her husband says. The days of husband’s making decisions for their wives, or determining contractual relations on behalf of their wives, are long gone.”
Judge Blake
Judge Blake noted that Mr Blewett understood that Ms Kaur “was upset and had been crying”. When he spoke to Mr Singh on the phone. Therefore, Mr Blewett should have realized that “whatever Mr Singh may have said may have been said in the heat of the moment.”
“It seemingly never occurred to Mr Blewett to speak to Ms Kaur directly, notwithstanding, that Mr Blewett agreed that Mr Singh had never said Ms Kaur ‘resigned’ from employment,” said Judge Blake.
The critical factor that deemed the dismissal an adverse action
In his phone conversation with Mr Blewett, Mr Singh had said that he and his wife would take up the matter of her workplace bullying with “Fair Work”. Judge Blake found that Ms Kaur “clearly possessed” the right to start proceeds under workplace laws concerning the matter.
Because exercising a workplace right is one of the prohibited reasons outlined in the General Protections provisions. This meant that Ms Kaur’s dismissal met the criteria for an adverse action. Judge Blake then determined if there was evidence to sustain that charge.
He found that Mr Blewett had “learned at least two things” during his phone conversation with Mr Singh. Namely, that Ms Kaur had suffered “racist bullying and harassment every day,” and that she was upset. Despite this, he found that Mr Blewett “took no step to understand why Ms Kaur was upset.”
Judge Blake said that while Mr Blewett was “an experienced and qualified human resources professional,” he “did not do any of the basic things, or make any of the basic inquiries, an experienced human resource professional might be expected to.”
Excise her workplace rights
Based on this evidence, Judge Blake determined that Mr Blewett “was concerned that Ms Kaur would exercise her workplace right to initiate process or proceedings in ‘Fair Work.’” “His response, rather, was to avail himself of the first opportunity to remove her from the business,” said Judge Blake. “Presented with an opportunity to avoid a drawn-out process, he grasped it.”
Judge Blake ruled that both Bervar and Mr Blewett had breached s340 of the Fair Work Act. He invited both parties to submit an agreed minute of orders within 21 days as to how the matter should proceed.
Conclusion to Adverse action case rules husband can’t speak for their wife
Its all good when couples get jobs together, until it goes wrong. Why should one partner pay the price of the loss of a job by being dismissed, because of the alleged actions of the other? Then to add insult to injury not even told by the employer they have been sacked / dismissed. Be carefully the circumstances as a couple your signing up with the employer for.
Have you been dismissed for exercising a workplace right?
If you have been dismissed for exercising a workplace right. Or for another reason outlined in the General Protections provisions, you may be eligible to make an adverse action claim. However, if you are not familiar with workplace relations laws, the process of making a claim, it’s often very difficult to know if you are eligible.
Our team of experts at A Whole New Approach can help make the process easy. For over two decades, we’ve helped thousands of employees like you seek compensation from their employers. Note: we are not lawyers or a law firm. We are proud of our staff and the outcomes they get for the clients. Anything relating to workers rights, employment rights, being sacked, abandonment of employment, casual employee rights, forced to resign, call us immediately
Call us today on 1800 333 666 for a free and confidential help, seek justice.
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