Employer Successfully Defends Adverse Action Claim by Kate Ausden

Kate Ausden Blog

An employee, who had been promised permanent residency by his employer (an Indian restaurant in Darwin), was dismissed for purported poor performance.

But, the employee alleged otherwise.

He alleged that he had been terminated for making a complaint about his hours of work, not for his poor performance. The employee made an adverse action application under the Fair Work Act 2009 to the Fair Work Commission, which went to a consent arbitration.

Under sections 340 and 341 of the Fair Work Act 2009 an employer must not take adverse action against an employee (terminate his or her employment) for exercising a workplace right (complaining about the terms and conditions of his or her employment).

The onus is on the employer to prove that the adverse action did not take place for a prohibited reason. It was commented by Commission Bissett that “the reasons of the decision-maker at the time of the adverse action is taken which is the focus of the inquiry.”

The employee and the Managing Director of the employer both appear to have given unreliable evidence at times and failed to explain conflicting evidence. For example, different sets of timesheets and employment contracts were produced by either party and their concurrent existence was unexplained.

The employee complained about his hours of work on 3 March 2018. Following this complaint there was a ‘performance management’ discussion on 6 March 2018. The FWC was of the opinion “that the performance issues were raised at least in response to the complaint of the Applicant [the employee]”.

After this initial meeting the employee received the devastating news that his application for permanent residency, sponsored by his employer, had been rejected (he had spent $9000 on the application). The FWC formed the view that the employee’s attitude (no doubt in response to his sponsorship application being rejected) worsened and his performance deteriorated rapidly resulting in warnings in April 2018 and May 2018.

Following further disagreement, the employee was dismissed in June 2018.

Commissioner Bissett commented that:

“It is accepted that Mr Kandasamy [the MD of the employer] can only give evidence as to what was in his conscious mind at the time he decided to terminate the Applicant’s [the employee’s] employment and consideration should not be given to any “unconscious reasons.”

The Commissioner was of the view that the matters, which occupied the employer’s ‘mind’, were predominately relating to the decline of the employee’s performance, and not the complaint he had made in March 2018.

The employee’s application was dismissed.

It is important to note that in order for an employee applicant to succeed there must be a direct and irrefutable connection between the adverse action and the workplace right.

Tiwari v Seljo Pty Limited [019] FWC 1833 (4 April 2019)