A worker who argued that his employer took adverse action against him for exercising a workplace right has claimed a huge victory in federal court. The worker was awarded over $93,000 after it was found that his employer dismissed him for complaining about his boss’s disrespectful and racist comments.
Making a workplace complaint. Whether about your pay, working conditions or the behaviour of your boss, is a protected right in Australia. If your employer treats you unfairly or dismisses you for doing so, you have the right to take them to court and sue for compensation.
Some of us have experienced a boss that simply has no regard for others. But the exceedingly vile, profanity-laden insults that the boss in this case regularly directed at his staff will shock you. Let’s take a look at the events of this adverse action case – Noonan v XYZ Security Services Pty Ltd trading as Advent Security Services . You must be warned, however, that this case features some very foul-mouthed language.
Manager is dismissed for making workplace complaint
On 4 September 2017, Joseph Noonan commenced full-time employment with Advent Security Group as its National Strategic Development Manager. From the outset of his employment, Mr Noonan alleged that he was subjected to unprofessional conduct from the CEO and Managing Director, Peter Benney.
The first key event in this adverse action case took place on Mr Noonan’s first day at work. This was when he was introduced to Mr Benney’s foul-mouthed tendencies. During a meeting, the CEO told him “we don’t have sick days here so f*cking forget about that”. A few weeks later, on 20 September 2017, Mr Benney let fly with another foul-mouthed comment. While he and Mr Noonan were interviewing an employee, the former allegedly referred to a female employee as a “filthy c*nt” and promise to “f*ck her life up”.
“Fill the c*nt in:” CEO makes several racist and derogatory comments
Over the next few months, the fact that Mr Benney’s insults would intensify was a key factor in this adverse action case. Mr Noonan alleged that Mr Benney made several racist remarks about Advent Security Group staff members in his presence. This included comments about a staff member of African heritage. Mr Benney said that if he ever complained, he would “take him to the cleaners” and disrespected him by saying “f*ck the black c*nt”.
Then on 2 November 2017, Mr Benney made racist comments in front of Mr Noonan and his fiancé, who is of Indian heritage. He said that there were “only two things you come back with from India. That is a red dot on your head and a taxi licence.” Later that month, Mr Benney would once again target Africans with his disgraceful comments. During a meeting with the Victoria Police, Mr Benney spoke of throwing African youths to the ground with “a boot on their necks.”
Offended, Mr Noonan criticised Mr Benney about his comments. But the CEO simply replied by saying he wanted to “grab one of these c*nts at the protest and take him out the back at Diamond Valley Pork and fill the c*nt in.” Mr Benney’s foul-mouthed comments abated for a little over a month. Then in January 2018, he once again said “f*ck the black c*nt” in reference to the employee of African heritage.
“What have you achieved today c*nt:” Employee complains to CEO about comments
Everything came to a head for Mr Noonan on 23 April 2018, when he was pushed over the limit. He had been called into Mr Benney’s office to join him and another manager. But when he entered, Mr Benney said to Mr Noonan “what have you achieved today c*nt.” To this, Mr Noonan simply replied, “Who are you talking to. Obviously not me” and walked out of the office.
The next day, Mr Noonan complained to Mr Benney in an email – which would later be a key piece of evidence in his adverse action claim. “Just a quick note to remind you that my name is Joe or Joseph or anything amusing at the time. It is not c*nt and I would appreciate you not calling me that especially in front of people,” Mr Noonan wrote in the email.
Shortly after receiving the email, Mr Benney called Mr Noonan and said “are you f*cking serious about that email?” Mr Noonan reiterated his desire to be treated with respect, but when the CEO brushed off his words, he replied “I am over it, I want to be working in a professional office.” Mr Benney was not impressed with that, and simply stated “Oh, is that right?”
CEO shuts out then dismisses Employee
Over the next few months, the CEO cut off communication with Mr Noonan. Then in September 2018, he generated a report on his work. In the report, Mr Benney outlined that Mr Noonan had only brought in two deals since he was hired.
Then on 10 September 2018, Mr Noonan was invited into a meeting and told by the CEO that he was dismissed. Mr Benney expressed dissatisfaction with Mr Noonan’s performance and the sales figures. He also stated that the role of National Strategic Development Manager was no longer required due to the company’s plans for a different direction in business development. Mr Noonan disputed these claims, mentioning that he had recently secured a contract, among other achievements.
Mr Noonan makes adverse action claim with the Fair Work Commission
Feeling he had experienced an adverse action due to making a complaint, Mr Noonan filed an adverse action claim know as general protections application with the Fair Work Commission. In his claim, Mr Noonan argued that he had been dismissed for making a workplace complaint about the CEO’s behaviour. He also argued that he had been dismissed because he had taken personal leave. Mr Noonan contended that the reason Advent Security Group provided for his dismissal was “baseless” and “was contrived” to conceal Mr Benney’s true reason for his decision.
Under the general protections provisions of the Fair Work Act 2009, making a workplace complaint is the legal right of an employee. And so too is taking personal leave. If an employee is dismissed for exercising either of these rights, the employer is said to have taken adverse action against the employee.
Federal Circuit and Family Court of Australia hears adverse action case
Mr Noonan’s adverse action claim soon progressed to the Federal Circuit and Family Court of Australia. Mr Noonan told the court that after he made the complaint to Mr Benney, he had been “frozen out.” He claimed that the CEO had never raised any performance issues with him. And Mr Noonan characterised the language Mr Benney used towards him as “insulting” and designed to be “a putdown.”
Mr Noonan told the Federal Court that he was not aware that his dismissal was due to his work performance. Rather, he believed that it was because his experience better suited another industry. Mr Noonan contended that he had in fact been performing adequately in his role.
CEO defends himself against adverse action claim
Mr Benney was cross-examined during the adverse action court proceedings. He defended his many foul-mouthed comments, arguing that his swearing was used in a “jocular or mateship tone of voice and never as a term of abuse or in a threatening manner.” The CEO justified the decision to dismiss Mr Noonan as he had been a “poor performer.”
Advent Security Group argued to the Federal Court that just because it had dismissed Mr Noonan after he had made a complaint, this did not mean that he was dismissed for that reason. The company therefore declared that it had not dismissed Mr Noonan for exercising a workplace right. Hence no adverse action had taken place.
Federal Court provides findings in adverse action case
With respect to Mr Noonan’s adverse action claim, the Federal Court first had to ascertain if the complaints he had made met the definition of a workplace complaint. This has to be as outlined in the Fair Work Act 2009. It was determined that Mr Noonan had made several genuine complaints to the CEO that met this definition. This included the email to Mr Benney in which he complained about being called a “c*nt”. Further it wished Mr Benney’s behaviour to be addressed.
Next, the Federal Court had to determine if Advent Security Group had the right to dismiss Mr Noonan due to his poor performance. It found that this decision was based on “actual evidence,” and therefore was an “operative reason” for his dismissal.
Federal Court finds dismissal was also due to workplace complaint
The Federal Court stated that just because Mr Noonan had been dismissed for poor performance, this did not mean that he had also been dismissed for making a complaint. It determined that after Mr Noonan had made the complaint. There was a “marked change” in his relationship with the CEO. To prove that Mr Noonan was not dismissed for making a workplace complaint, Advent Security Group had to provide evidence to support that claim, beyond a reasonable doubt. The Federal Court was not satisfied with the evidence the company provided.
It therefore determined that, on the balance of probabilities, Mr Noonan was dismissed due to making a workplace complaint. Therefore, the company had taken adverse action against him. The Federal Court was, however, satisfied that Advent Security Group had not dismissed Mr Noonan for taking personal leave.
Federal Court finds adverse action was taken
Based on these findings, the Federal Court ultimately ruled that Advent Security Group had taken adverse action by dismissing Mr Noonan for exercising the right to make a workplace complaint. “[Advent Security Group] has established on the balance of probabilities that the underperformance of [Mr Noonan] was a reason for his dismissal, but it cannot be said to be the only operative and substantial reason for his dismissal,” the Federal Court stated.
Mr Noonan was awarded $93,500 in financial compensation. This consisted of $83,500 for lost income. And $10,000 for non-economic loss. Mr Noonan was also awarded interest on the total compensation figure, as well as the right to seek penalties with respect to the contravention of the Fair Work Act 2009.
Have you experienced adverse action at work?
If you have been unfairly dismissed, discriminated against or treated unfairly for exercising a workplace right, call us. But remember, you need to act fast. You only have 21 days from the date of your dismissal to make a claim with the Fair Work Commission.
AWNA are not lawyers. We are a team of experienced workplace representatives who can help you navigate the unfair dismissal or general protections process and get the compensation you deserve. Over the last 30 years, we have helped thousands of employees get the justice they deserve. We know the Fair Work Commission inside and out, and we are dedicated to getting you the best possible outcome.
We offer a free initial consultation, so you can get all your questions answered without any obligation. If we represent you, we will work on a contingency fee basis, so you do not pay anything unless we win your case. So if you have been unfairly dismissed or have experienced adverse action, do not wait.
Contact A Whole New Approach on 1800 333 666 today and let us help you get the justice you deserve.