Worker dismissed for complaints wins adverse action claim 

The general protections of the Fair Work Act state that an employer can’t take adverse action against an employee for making a complaint. But what if the employee repeatedly complains; can that be considered workplace harassment?

In a recent adverse action case, the Federal Circuit Court had to decide if an employee’s repeated complaints were ‘badgering,’ as the employer claimed, and therefore justified dismissal. Or if they were legitimate complaints that the employer had the right to make. Let’s look at the events of this general protections case: Guthrie v Mondiale VGL Pty Ltd [2024].

Worker dismissed for “badgering” employer about flexible work request

John Guthrie began working for freight and logistics provider Mondiale as a truck driver in June 2014. In November 2018, he told the company he would be moving to Western Australia for family reasons. He requested that he work afternoon or night shifts in order to care for his child. Mr Guthrie completed the move to Western Australia in 2019. He was told that as soon as a night shift position became available, he would be given priority.

In April 2019, Mondiale alleged that Mr Guthrie had damaged an A-frame trailer and jockey wheel. The company also alleged that he had failed to stop at the stop line and radio the forklift driver at Mondiale’s Kwinana yard. Mr Guthrie, however, said that neither of these incidents happened.

In June 2019, Mr Guthrie was told that he had been overlooked for a night shift position. Court documents stated that Mondiale “need[ed] to immediately fill the role without training.” He was however told that he remained the “front runner” for the next available night shift position. Mondiale also said that Mr Guthrie would need a dangerous goods licence to be accepted for the night shift positione. He denied that this was needed, however.

“Nothing short of a kick in the teeth”

Mondiale said that it would try to create a hybrid position that would see Mr Guthrie begin work at 3pm. However, the company never followed through on this position. So Mr Guthrie took his flexible working request claim to the Fair Work Commission. He described how Mondiale had “completely rescinded” its intention to provide him with a later shift, describing it as “nothing short of a kick in the teeth.”

Mr Guthrie later discontinued his Fair Work Commission claim as he was told he first needed to pursue the dispute resolution under the requirements in his award. He told the court that he discontinued the claim as Mondiale had agreed to participate in the dispute resolution. However, the company denied ever having made such an agreement.

HR manager considers complaints “badgering”

Mr Guthrie’s battle with his employer continued for many weeks, during which time he exchanged numerous “robust” emails with Mondiale’s HR representative. The HR representative told the court that she had provided “meaningful engagement” and “considered responses” to Mr Guthrie’s concerns.

She claimed that from August to November 2019, there “had been escalating disrespectful treatment by Mr Guthrie to others in the business.” She also alleged that he had subjected her specifically to “continued harassment and badgering.”

Complaints sent HR manager over the edge

According to the HR representative, this disrespect reached a “tipping point” with an email in November 2019. In the email, Mr Guthrie had requested for Mondiale to take part in the dispute resolution process stipulated under his award. He also accused the company of taking adverse action against him for making a complaint over a workplace right.

He also made complaints concerning underpayments. Mr Guthrie told Mondiale that he would allow the Fair Work Commission to determine if adverse action had been taken against him. And that he would have no further contact with the HR representative.

“You have now idea at the amount of stress that [Mondiale] has put me through over the last 6 months and I am extremely close to having to take some time away form work, something which my doctor has already suggested to me” Mr Guthrie told the HR representative in the email.

Worker is dismissed

The HR representative told the court that the final email from Mr Guthrie led to the breakdown of his employment relationship with Mondiale. She then discussed the issue with senior management at the company, who “without entering into much conversation” dismissed summarily (serious misconduct) Mr Guthrie on 9 December 2019.

In his termination letter, Mondiale cited Mr Guthrie’s “nonprofessional work behaviours.” The company said that this violated its code of conduct and its health and safety three strike policy. Mr Guthrie subsequently made an adverse action claim through the Fair Work Commission.

Court decides adverse action case

Mr Guthrie’s adverse action claim was heard by the Federal Circuit and Family Court in May 2024. The court found that the majority of Mr Guthrie’s communications with the HR representative were “entirely respectful in their approach.”

There was just one exception – the email he sent on 18 November 2019. The court deemed this email to “border on being disrespectful.” It was noted that the HR representative had misinterpreted Mr Guthrie’s intentions, failing to recognise that he was seeking solutions rather than harassing her. The court said that “the low-level disrespect” in his 18 November email occurred “very late in the interaction” after “six weeks of robust exchanges.”

Fair Work action contributed to dismissal, court finds

Leading up to the 18 November email, it was acknowledged that Mr Guthrie had raised the fact that he had exercised a workplace right by requesting a flexible work arrangement. Also, by questioning his underpayments and by taking his complaints to the Fair Work Commission.

The court noted that the only thing that changed between 18 November and Mr Guthrie’s dismissal two days later “appears to be that [the worker] had raised the possibility of involving the [Fair Work] Ombudsman to resolve the dispute.”

Failure to testify works against employer

In adverse action cases, the Fair Work Act 2009 places the onus on the employer to prove that adverse action did not take place. The court noted that only Mondiale’s HR representative and national transport manager testified in court. However, it required evidence from further decision makers within the company. Therefore, the court was unable to discharge the reverse onus imposed on Mondiale under the Fair Work Act 2009.

The court also found that Mondiale omitted other reasons for the worker’s dismissal from the termination letter, including his complaints about underpayment. Ultimately, the court concluded that adverse action was taken against Mr Guthrie in relation to his workplace rights. The matter was subsequently ordered to proceed to a penalty hearing to determine financial compensation.

University of Melbourne fined over $74K for adverse action over complaints

Another recent adverse action case that saw two workers win big is Fair Work Ombudsman v University of Melbourne [2024]. In April 2024, the Federal Court fined the University of Melbourne a total of $74,590 for taking adverse action against two casual academics.

The academics had filed adverse action claims with the Fair Work Ombudsman against the university in 2022. The duo had complained about being required to work more hours than the “anticipated hours” stated in their contracts. Also, the fact that they were not paid for the extra hours.

“Don’t expect work next year”

The academics alleged to the Fair Work Ombudsman that they were threatened not to exercise their workplace right to complain. They said that their supervisor told them: “if you claim outside your contracted hours, don’t expect work next year.”

The university was found to have taken adverse action on two occasions. The first took place in 2020 when the supervisor threatened not to rehire one of the academics during a virtual meeting. The second took place in 2021 when the supervisor made the decision not to offer the two academics further contracts.

Academics were “entitled to complain”

The Federal Court stated that the academics’ “complaints should have been free of consequence.” It stated that the penalty for the university needed to be sufficient to deter other universities of doing the same. The court highlighted that the academics were “entitled to complain or inquire about their ability to perform their work within the ‘anticipated hours’ contained in their contracts of employment.”

University pays the price

The court imposed $37,295 in penalties for threats made by the university not to re-employ the two casual academics. An additional penalty of $37,295 was imposed after the university ceased offering further teaching work to one of the casual academics.

In addition to the penalties, the University of Melbourne compensated one academic with $4,000 and the other with $10,000 for non-economic losses. The university has also issued an apology for its contraventions and acknowledged the necessity for improvement in its practices.

“You’re quite pretty for an Aboriginal”: Worker fired after making racism complaint

Another more shocking case of a dismissal due to making a complaint hit the headlines in 2018. It involved 25-year-old Samantha Cooper, who worked part-time as project manager at the Centre Against Domestic Abuse in Moreton Bay, Queensland. In 2018, she brought an adverse action claim against her employer via the Fair Work Commission.

Ms Cooper, an Aboriginal woman, alleged that she was dismissed shortly after making a complaint about racist remarks she had endured from coworkers. In her general protections claim, she detailed that she had suffered queries like, “What percentage Aboriginal are you?” and remarks like, “You don’t look Aboriginal” and “You’re quite pretty for an Aboriginal.”

Ms Cooper also told the Fair Work Commission that her team leader introduced her to new staff by saying, “Sam can usually be found in this office, when she hasn’t gone walkabout.” This team leader also allegedly commented that she was a good worker but implied that “Aboriginal workers can sometimes be lazy.”

Worker was “gob-smacked” she was dismissed for complaining

Ms Cooper officially raised her concerns in a meeting with her manager and team leader in November 2017. She requested that they address the comments with staff. She then filed a formal complaint to her employer’s board, who promised a response within ten business days.

But just two days after lodging this complaint, Ms Cooper was summarily dismissed by her employer. She told media in 2018 that her termination left her “gutted” and “gob-smacked.” The termination letter cited the reallocation of funds as the reason for her dismissal.

“I thought it cannot be true that somebody is fired for putting in a complaint,”

Ms Cooper told media in 2018.

Employer said racist remarks weren’t proven

In December 2017, Ms Cooper was informed that the investigation into her racism allegations found that her complaints were “unsubstantiated.” As such, her employer said that the matter was finalised. In early 2018, she took her case to the Fair Work Commission, alleging that her employer breached its duty of care.

She claimed the organisation failed to provide adequate supervision, which she believed negatively affected her mental health and led to a medical condition. Ms Cooper’s Fair case was set to be heard by the Fair Work Commission in January 2018. The result has not been made public.

If your complaint has led to adverse action, call us

We at Whole New Approach are Australia’s leading workplace mediators and problem solvers. AWNA are not lawyers. Our team can help you take your employer to the Fair Work Commission to ensure your rights are not violated. Feel stuck in a toxic workplace or getting to the point of being forced to resign call us first. Always explore your options before taking a decision.

If you have experienced adverse action due to making a complaint, or due to your race, gender or religion, call us. We can guide you through the process of lodging a general e action, harassment, discrimination or another workplace rights violation. We offer a no win, no fee service. And your first consultation with us is free.

Contact A Whole New Approach today at 1800 333 666 to access the support you require.

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