Dismissed for complaining worker wins $100,000
A recent general protections claim for adverse action case has seen a manager win almost $100,000. After he was dismissed for making a series of complaints to his employer. The Federal Circuit and Family Court of Australia found that the employer had executed an ‘elaborate and sophisticated scheme’ aimed at dismissing the employee. Dismissed for complaining worker wins $100,000, this should be compulsory reading to know your employee rights
This case, which we detail below, provides a clear example of what it means for an employee to have an adverse action taken against them by their employer. And it will help you learn what kinds of actions are considered so. But before we get into the case, let’s first define exactly what an adverse action is.
What is an adverse action?
An adverse action is 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. These include the employees’ race, religion, sex, and a range of other immutable characteristics. An adverse action can include the dismissal of an employee, but also other actions. For instance, refusing to employ a prospective employee or altering an employees’ position to their detriment.
The Fair Work Act 2009 also protects the workplace rights of employees that entitle them to benefit from a workplace law or instrument. It’s illegal for an employer to take an adverse action against an employee for exercising their workplace rights. For instance, if an employer dismisses an employee if they make a complaint about them through Fair Work Australia.
In the case we detail below, the employer took adverse action against the employee after he made a series of complaints, including one to Fair Work Australia. Let’s look at the circumstances leading up to those complaints and the reasons why the employer was ruled to have taken adverse action.
A company restructuring unfairly punishes a ‘good and valuable’ employee
Stuart Lees had been employed by multinational personal care and hygiene company Asaleo as a sourcing manager since 2014. He had been described as a ‘good and valuable employee,’. However in July 2019, his relationship with his employer soured. This was due to a business restructuring which diminished the responsibilities of Mr Lees’ position as a sourcing manager.
Rejecting the changes to his position, Mr Lees issued a complaint to his employer in which he sought a ‘formal redundancy.’ He argued that in diminishing his role, Asaleo had attempted to constructively dismiss him. Asaleo, however, informed Mr Lees that his position hadn’t been made redundant.
Excising a workplace right
Central to this adverse action case is that between July 2019 and March 2020, Mr Lees made six further complaints against his employer. This included one complaint about bullying by senior managers. Mr Lees filed an application for an Order to Stop Bullying with the Fair Work Commission, which was resolved in November 2019.
‘LOL, love your panache’: The employee sends a ‘very patronizing’ email to a junior colleague
Mr Lees also complained about his employer’s handling of an inappropriately worded email he had sent to a junior colleague. The email was regarding Mr Lees’ forthcoming trip to Asaleo’s New Zealand premises, and reads thusly:
‘LOL, love your panache never ceases to amaze me Lou; I like it !! No problems joining me for the Amcor visit; I’ll get Tanya to forward the invite to you. If anyone else would like to join us please let me know. We won’t be performing any QBR’s until after Q1, but thanks for the suggestion !’
The recipient forwarded the email to her manager and human resources, and provided her thoughts thusly:
‘I found the informal tone of [the 14 Feb 2020 email] is inappropriate for the audience copied. This is the second time he has used this term “panache” in an email about my behaviours and that time the audience was even wider. I found the tone and term belittling, when my requests are reasonable.’
Employee refutes bullying, counter accuses employer of ‘suspicious’ actions
After receiving an email from the email recipient’s manager inferring that he had demonstrated bulling behaviour, Mr Lees responded:
‘I completely and utterly refute any such inference, the timing of which is very suspicious given the events of late last year at the Fair Work Commission.’
The ‘events of late last year’ to which he refers was the Order to Stop Bullying application. Mr Lees further outlined that he didn’t appreciate the manager’s ‘on-going micro aggressions.’
The employee is dismissed on grounds of misconduct
Following the ‘panache’ email, on 3 March 2020 Mr Lees’ senior management issued him with a draft performance improvement plan (PIP). This act was key to the employee’s adverse action claim. A week later, Mr Lees rejected his manager’s calendar invitation to discuss the PIP.
He subsequently sent his manager an email stating that ‘in no way shape or form do I accept the premise of the PIP.’. Mr Lees reiterated his desire to be given a redundancy. If not, he would ‘commence proceedings in the Federal Court for Unfair (Constructive) Dismissal.’ On 12 March 2020, the refusal to take part in the PIP proceedings caused Asaleo to dismiss Mr Lees on the grounds of misconduct. The dismissal was confirmed in writing to Mr Lees:
‘As a result of your outright refusal to participate in [the PIP] which is intended to support you to improve in your role, we have been left with no choice but to terminate your employment on the grounds of misconduct.’
Mr Lees was provided two months’ pay in lieu of notice.
The employee files an adverse action claim against his employer
In his general protections claim regarding his dismissal submitted to the Federal Circuit and Family Court of Australia (the Court), Mr Lees alleged that Asaleo had taken adverse action against him. He claimed it did this by presenting him with the draft PIP, and thereafter dismissing him because he had had exercised his workplace rights to complain.
Mr Lees also claimed that Asaleo had breached his employment contract. He said that because it had failed to undertake a formal performance review, he wasn’t eligible for a bonus payment worth up to 20 percent of his salary.
The Court finds the employer had taken adverse action against the employee
In general protection adverse action cases, the onus of proof is reversed. This means that Asaleo had to prove that the adverse action taken was not for a prohibited reason.
Asaleo argued that it hadn’t taken adverse action by presenting the draft PIP to Mr Lees, and later dismissing him. However, the Court saw things differently. It found that the presentation of the draft PIP to Mr Lees likely set him up for dismissal. It also accepted that the PIP was a real and substantial alteration of his position. The Court also rejected Asaleo’s claim that they were required to present the PIP to Mr Lees in accordance with the settlement terms of the Order to Stop Bullying action. It was found that the settlement terms didn’t require the presentation of the PIP at all.
‘It follows that the presentation of the draft PIP to Mr Lees constituted adverse action, consisting of altering Mr Lees’ position to his prejudice,’ ruled Judge Heather Riley.
The Court also ruled that Asaleo had taken adverse action for a prohibited reason by terminating Mr Lees’ employment. Mr Lees’ email to a junior colleague was found to not have warranted presenting him with the PIP. The Court also found that Asaleo had breached Mr Lees’ employment contract by not providing him with annual performance reviews.
Penalties for general protection breach’s will apply
Judge Riley regarded Mr Lee’s dismissal and the issuance of the PIP to him as two ‘discrete and separate’ contraventions. Therefore, each would entail a different penalty. Asaleo’s lack of contrition was considered when determining the employee’s payout. Judge Riley noted that Asaleo ‘made no admissions, has taken no corrective action and has not apologised.’
Proving a ‘because of’ causal link is key to winning an adverse action case
For an adverse action claim made against an employer to be successful, the employee must 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 made a complaint.
Conclusion to Dismissed for complaining worker wins $100,000
In the aforementioned case, the employee proved that two adverse actions were taken against him. That is, the altering of his employment to his detriment via the issuance of the draft PIP, and his employment termination. He proved that these were adverse actions because they were taken because of the fact that he had made complaints about his employer. Failing to establish this ‘because of’ causal link is one of the main reasons why employees often fail when making an adverse action claim against their employer.
If you need guidance on how to mount a successful adverse action claim, A Whole New Approach can help. We can streamline the process for you. We provide expert advice to cut through the complexity of the Fair Work Act requirements. Call our expert team today on 1800 333 666 for a free and confidential conversation. For all dismissal claims, abandonment of employment, casual employee rights, issues in probation periods, call us today.
We are located in Victoria, however we work in all states.
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One of the nations leading workplace advisors, representatives and commentators. Gary has represented some 12,000 clients over some 20 plus years, published some 300 plus articles. He is passionate about employees rights and the test of fairness in the workplace. Have a problem, concern, wants to contribute to the debate or research, call him directly.