Retaliatory dismissal results in $130K adverse action payout

A worker who claimed he was victimised after making a complaint has been awarded a huge adverse action payout by the Federal Court. The worker had complained that his employer had not put sufficient COVID-19 safety protocols in place. He had also applied for a stop bullying order against his manager and had complained about a biased investigation into his own conduct.

The worker was then subject to a complaint that he himself had victimised a colleague, leading to his dismissal for serious misconduct. Let’s look at the events of this unlawful dismissal case Parsons v Serco Citizen Services Pty Limited [2024]. Dismissal for complaining can lead to significant court claims.

Dismissal over management complaints results in $130K payout

Christopher Parsons had been employed by facilities management firm Serco Citizens Company for nearly 17 years. As a learning and development lead, he had established a reputation as a diligent and committed worker. However, the relationship between Mr Parsons and his manager took a turn for the worse in 2020 over disagreements on COVID-19 safety protocols.

The first key event in this vicitmisation case saw Mr Parsons raise concerns about the number of individuals permitted in a training room during the pandemic. He felt that stricter measures were needed to protect the health of employees. The tensions escalated when Mr Parsons lodged a complaint against his manager. He alleged his manager had bullied him and had failed to implement appropriate safety measures.

Mr Parsons also lodged an application with the Fair Work Commission for a stop bullying order against his manager. The duo subsequently engaged in a conciliation which resulted in Mr Parson’s dropping the application.

Colleague’s complaint and disciplinary actions

The next key event in this victimisation case was when a colleague of Mr Parsons, a learning and development facilitator, filed a complaint against him. Mr Parsons was accused of failing to invite the colleague to work-related “catch-ups.”

The colleague also claimed he had neglected to check in with her after she returned from 4.5-months’ worth of leave to address mental health issues. The complainant also alleged Mr Parsons had harassed her by involving her in disputes with his own manager.

The colleague claimed that these actions worsened her stress and anxiety, leading to significant personal distress. Mr Parsons was subsequently subject to a disciplinary action. This included a written warning and a six-month ban from applying for any vacancies within Serco.

Worker claims investigation was biased

The disciplinary actions taken against Mr Parsons following the first complaint marked a significant turning point in his relationship with Serco. He responded by raising concerns about the way the investigation into the colleague’s complaints was conducted.

Mr Parsons accused the manager who oversaw the workplace investigation of bias and that he had been denied procedural fairness. He also argued that the manager had a conflict of interest. This was because she had previously had disagreements with him.

Colleague alleges victimisation with second complaint

The same colleague who complained about Mr Parsons made another complaint. She alleged that Mr Parsons had bullied her upon her return to work. She claimed that he had excluded her from meetings and failed to communicate important information. The complainant also alleged Mr Parsons generally created a hostile work environment.

The colleague argued that Mr Parsons had victimised her for making a complaint against him. She argued it was a continuation of the harassment she had previously reported. And she claimed his behaviour contributed to a toxic atmosphere in the workplace.

Serco subsequently launched another investigation that substantiated the vicitimisation claims against Mr Parsons. He was then dismissed from his position for serious misconduct. Serco justified the termination by claiming that Mr Parsons posed an imminent risk to the colleague’s health and safety.

Victimised worker claims dismissal was retaliatory

Mr Parsons, however, challenged this reasoning. The employee argued to the Federal Court of Australia that his dismissal was not genuinely about the alleged serious misconduct. He claimed that it was instead a retaliatory measure taken in response to his earlier complaints against management. He claimed that he had been fired for exercising a workplace right; namely, to make a complaint.

Mr Parsons claimed that Serco had seized upon the second complaint from his colleague and used it as a reason to fire him. He also claimed that the complaint was meritless. Mr Parsons maintained that he had met with the colleague on several occasions to discuss her work situation and future aspirations.

Mr Parsons told the Federal Court that Serco “went about cultivating, concealing and manipulating information, people and events” in order to sack him. He also highlighted the fact that he had been cautious in his interactions with her following the warning issued after the first complaint.

Federal Court decides victimisation case

To decide if Mr Parson’s had been victimised and subject to adverse action, the Federal Court of Australia examined emails, text messages and witness testimonies. It paid special attention to the actions and decisions of the manager who conducted the investigations. The court was particularly critical of how Serco handled the investigation into the second complaint.

It found that the company had failed to conduct a thorough and impartial investigation. As evidence of this, the court highlighted the way the manager conducting the investigation decided to dismiss Mr Parsons without adequately verifying the allegations made against him.

Court slams “inexplicable” dismissal decision

Serco had requested that the colleague provide specific examples of how she had been mistreated by Mr Parsons. However, no detailed examples were provided and the investigation proceeded without this crucial information being corroborated. Despite this, the manager conducting the investigation decided to dismiss Mr Parsons for serious misconduct.

The court said that the manager had “inexplicably” chosen to conclude that Mr Parsons had victimised the colleague without checking if her complaints were truthful.

“This failure to engage in basic fact-checking and to ensure that the investigation was conducted fairly and impartially was a significant factor in the court’s decision,”

the Federal Court of Australia stated.

Court dismisses employer’s argument

The Federal Court was not satisfied with Serco’s argument that the adverse action taken against Mr Parsons was unrelated to his prior complaints. It deemed that the timing and circumstances of the dismissal suggested that Mr Parsons’ complaints about his manager and the investigation lead were the main reason for it.

“In my opinion, the reasons expressed by [the operations director] for her findings that [the worker] had engaged in retaliation and bullying of [the colleague] because she had made a complaint against him are so lacking in objectivity and plausibility as to indicate they are not genuinely her reasons for those findings.”

The court therefore ruled that Serco had unlawfully terminated Mr Parsons. The company was ordered to pay Mr Parsons $130,000. This included $120,000 for economic loss and $10,000 for non-economic loss, such as the distress and humiliation caused by the dismissal.

Worker alleges victimisation after encountering old boss at new job

Another recent tribunal case involving victimisation is Jaggi v City of Parramatta Council No 2 [2024]. In July 2023, Vikram Jaggi lodged an application for relief from victimisation with the Industrial Relations Commission of New South Wales. He alleged that the current CEO of his employer City of Parramatta Council, Gail Connolly, refused to hire him for a new role because he had previously pursued an unfair dismissal claim.

Previous unfair dismissal claim leads to alleged victimisation

Mr Jaggi had been employed by the Georges River Council under a two-year contract starting in October 2017. The CEO of the council at the time was Connolly. Mr Jaggi argued that his employment had been terminated prematurely in January 2019 by the council. He won his unfair dismissal claim and the matter was later settled between the two parties.

In June 2023, Mr Jaggi was shortlisted and interviewed for the role of senior finance business partner at the City of Parramatta Council. Despite an initial offer, he alleged that Connolly refused to sanction the appointment.

CEO alleged worker ‘faked injuries’

The NSW Industrial Relations Commission examined the events leading up to the withdrawal of the job offer. Ms Connolly testified that her decision to end Mr Jaggi’s recruitment was based on her previous experiences with him during their time at Georges River Council.

Ms Connolly testified that Mr Jaggi had demonstrated problematic behaviour which included “faking injuries and going to the gym during work hours.” Mr Jaggi denied these misconduct allegations. He also attempted to introduce evidence from the previous unfair dismissal proceedings. His aim was to demonstrate that he had been a high-performing employee at Georges River Council.

However, the NSW Industrial Relations Commission found that this evidence did not support Mr Jaggi’s claim of being a high performer. Instead, they reiterated the fact that his dismissal was due to his services being deemed surplus to the council’s needs.

Was the CEO biased in not recruiting the worker?

The Commission also considered whether Ms Connolly’s involvement in the previous unfair dismissal proceedings had influenced her decision to end Mr Jaggi’s recruitment. Mr Jaggi had challenged the credibility of Ms Connolly’s evidence. He stated that her concerns about their previous performance were unfounded and that her decision to terminate the recruitment process indicated an ulterior motive.

The Commission, however, did not find these arguments persuasive. It accepted that Ms Connolly genuinely believed the worker had exhibited such behaviour, based on reports from her subordinates. It also determined that Ms Connolly’s expressed views, though uncharitable, were consistent with her overall perspective and added to her credibility.

Commission dismisses victimisation application

The NSW Industrial Relations Commission concluded that the Council’s decision not to employ Mr Jaggi was not motivated by his participation in prior legal proceedings. It stated that Ms Connolly had impressed them as a reliable witness whose evidence could be trusted. This was despite Mr Jaggi’s attempt to undermine her arguments.

“The only reason the respondent refused to employ Mr Jaggi is because Ms Connolly had a strongly negative view of Mr Jaggi’s work performance and work ethic, reinforced by his choice of Mr Mangru as a referee,” the Commission stated in its judgment.

The Commission also clarified that its decision did not reflect negatively on Jaggi’s overall credibility or his capabilities as an employee. Instead, the ruling was based solely on the specific circumstances and evidence presented in this case.

It was therefore found that the Council had successfully demonstrated that the refusal to employ Mr Jaggi was not related to any improper motive. And it was found that Mr Jaggi had failed to establish a link between the previous unfair dismissal proceedings and the employer’s decision not to hire him. As a result, his victimisation application was dismissed.

Dismissal for complaining: Have you been bullied or victimised at work?

Get in touch with our friendly team at A Whole New Approach. ( AWNA are not lawyers). We’re Australia’s leading workplace mediators with over 20 years’ experience dealing with the Fair Work Commission. We are considered by many the leading representatives and commentators on workplace issues. We have no fear when it comes to taking on big business or goverment departments.

If you need assistance applying for a stop bullying order, unfair dismissal claim or adverse action claim, we can help. With a free and private consultation, we can step you through the process and guide you on how best to approach your Fair Work action.

Give us a call today on 1800 333 666 for a no-obligation introductory discussion about your situation.

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