Employment Law Series: Disputes arising from employment termination – general protection claims & adverse action

As we all know, often termination is challenging and if not handled delicately can result in a dispute.  The common disputes that arise out of employment termination are:

• Unfair Dismissal; and
• General Protection claims.

In this article, we examine general protection claims.

General Protections

One of the primary objectives of the Fair Work Act 2009 (Cth) (FWA)  is to enable fairness and representation at work and prevent discrimination by recognising freedom of association and the right to be represented, and to protect against unfair treatment and discrimination, providing accessible and effective procedures to resolve grievances and disputes and providing effective complain mechanisms.

Particularly the FWA provides for the following General Protections:

• workplace rights;
• freedom of association;
• protection from workplace discrimination; and
• provision of effective relief for persons who have been discriminated against, victimised or have experienced other unfair treatment[1].

It is unlawful for employers to take action against an employee in relation to these matters – known as adverse action. We have considered the following general protections in this article:

• Workplace Rights;
• Industrial Activities; and
• Discrimination.

Workplace Rights – Division 3 Fair Work Act

The restriction on employers

An employer must not take adverse action against an employee because that person has a workplace right they have, may or have not exercised. Further, an employer must not take adverse action against an employee to prevent the exercise of a workplace right.

Meaning of workplace right

1. A person has a workplace right if the person:
   1. is entitled to the benefit of, or has a role or responsibility under, a workplace law, workplace instrument or order made by an industrial body; or
   2. is able to initiate, or participate in, a process or proceedings under a workplace law or workplace instrument; or
   3. is able to make a complaint or inquiry:
      1. to a person or body having the capacity under a workplace law to seek compliance with that law or a workplace instrument; or
      2. if the person is an employee–in relation to his or her employment.

Meaning of process or proceedings under a workplace law or workplace instrument:

1. a conference conducted or hearing held by the FWC;
2. court proceedings under a workplace law or workplace instrument;
3. protected industrial action;
4. a protected action ballot;
5. making, varying or terminating an enterprise agreement;
6. appointing, or terminating the appointment of, a bargaining representative;
7. making or terminating an individual flexibility arrangement under a modern award or enterprise agreement;
8. agreeing to cash out paid annual leave or paid personal/carer’s leave;
9. making a request under Division 4 of Part 2-2 (which deals with requests for flexible working arrangements);
10. dispute settlement for which provision is made by, or under, a workplace law or workplace instrument;
11. any other process or proceedings under a workplace law or workplace instrument.[2]

One clear example of a contravention of the General Protections Provisions in Part 3-1, Division 3 was the matter of Mr Dalton Crawford v A. Halid & J. Memedovski t/as Goodys Charcoal Chicken.

The applicant in that matter was Dalton who worked for Goodys Charcoal Chicken (the Employer) for the periods of 14 March 2016 until 27 September 2016. Dalton alleged that the Employer had dismissed him because he had exercised his workplace right to challenge the underpayment of his wages.

The background leading to Dalton’s termination was, as follows:

1. Dalton (16) worked for Goodys Charcoal Chicken on at least one regular shift for 5 hours each Saturday and up to another two additional shifts per week;
2. On 15 September 2016, Dalton’s mother complained to the Employer regarding Dalton being paid less than minimum wage under the relevant award;
3. Dalton was being paid $8 per hour when he was 15 and $9 per hour when he turned 16 (Monday to Friday) $10 on Saturdays;
4. On 17 September 2016, the Employer said to Dalton that the pay issue was none of his mother’s business and denied the underpayment;
5. On 19 September 2016, following consultation with the Fair Work Ombudsman Dalton’s mother wrote a letter to the Employer outlining the alleged underpayment and the basis for that allegation;
6. Shortly after the Employer received the letter Dalton was contacted by the Employer stating “what is your mother’s problem”;
7. On 24 September 2016, Dalton attended his shift and was turned away by the business owner’s sister stating that she was told he was not needed and his shift had been covered;
8. The Employer then phoned Dalton to say that there had been a misunderstanding and the Employer claimed Dalton stated he was not coming back and effectively terminated his employment;
9. On 26 September 2016, Dalton sent a text to the Employer about his upcoming Saturday shift and did not receive reply;
10. On 27 September 2016, Dalton called the Employer to inquire about his Saturday shift and was told that he would not be working until the issues with his mother were worked out, including underpayment of wages; and
11. It was accepted by the parties that Dalton was dismissed at the initiative of the Employer on 27 September 2016.

The Fair Work Commission determined that:

1. Dalton exercised a workplace right when he and his mother complained that he had been underpaid (see Industry Award);
2. termination of employment is considered adverse action;
3. the adverse action was for a prohibited reason being satisfied that reasons for the dismissal included complaining of underpayment of wages and seeking to rectify the underpayment; and
4. The respondent pay Dalton for non-economic loss ($600) and payment for remuneration lost for economic loss ($583.20).

Industrial Activities – Division 4 Fair Work Act

The restriction on employers

This is best set out paraphrasing the legislation…

1. [an employer] must not take adverse action against [an employee] because the [employee]:
2. is or is not, or was or was not, an officer or member of an industrial association;
3. engages, or has at any time engaged or proposed to engage, in industrial activity within the meaning of paragraph 347(a) or (b); or
4. does not engage, or has at any time not engaged or proposed to not engage, in industrial activity within the meaning of paragraphs 347(c) to (g).

One case where the High Court considered the question of whether the termination of an employee was an action taken for a reason prohibited under section 347 of the FWA is Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2014] HCA 41.

The claim was made by the CFMEU on behalf of one of its members, Mr Henk Doevendans who was terminated by BHP in May 2012 after his participation in a protest organised by CFMEU. The background leading to Mr Doevendans’ termination was, as follows:

1. At the time of his termination, Mr Doevendans had been employed by BHP at the Saraji mine for 24 years;
2. CFMEU organised a seven-day work stoppage between 15 and 22 February 2012;
3. During the work stoppage, Mr Doevendans and other employees of the Saraji mine participated in protests beside the road leading to the mine;
4. On four occasions over three days, Mr Doevendans held a sign that read “No principles SCABS No guts”; and
5. The General Manager of the Saraji mine, Mr Geoff Brick, decided that Mr Doevendans should be dismissed because the sign used the word “scab” which breached a workplace conduct policy and a charter of values.

At first instance, Jessup J of the Federal Court of Australia held that BHP did dismiss Mr Doevendans because he had participated in a lawful activity organised by an industrial association, and because he had represented and advanced the views and interests of that association.

BHP appealed to the Full Court of the Federal Court. The appeal was allowed and the orders of Jessup J were set aside. The Full Court held that BHP had not dismissed Mr Doevendans because he had engaged in industrial activity with the meaning of the FWA.

CFMEU appealed with special leave to the High Court, where it was held that:

1. The reasons found by the primary judge for Mr Doevendans’ dismissal did not include his participation in industrial activity or his representing the views of CFMEU;
2. Instead, the dismissal of Mr Doevendans was because of the nature of Mr Doevendans’ conduct and what it represented to his employer and Mr Doevendans as an employee; and
3. The termination was not contrary to s 346(b) of the FWA.

Discrimination – Division 5 Fair Work Act

The restriction on employers

An employer must not take adverse action against a person who is an employee, or prospective employee, of the employer because of the person’s race, colour, sex, sexual preference, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin. However, this does not apply to action that is:

1. not unlawful under any anti‑discrimination law in force in the place where the action is taken; or
2. taken because of the inherent requirements of the particular position concerned; or
3. if the action is taken against a staff member of an institution conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion or creed–taken:
4. in good faith; and
5. to avoid injury to the religious susceptibilities of adherents of that religion or creed.

One case that dealt with adverse action against an employee because of her pregnancy and/or her family or carer’s responsibility was the Fair Work Ombudsman v Tiger Telco Pty Ltd (in liq) which was heard in the Federal Court of Australia.

Michelle Jorgensen was employed as a Store Manager at the respondent’s Corio store. She took parental leave and in May 2010, the respondents failed to return Ms Jorgensen to her pre-parental leave position. Instead, the respondents employed another person as permanent Store Manager of their Corio store.

The Federal Court held that the respondents:

1. breached section 84 of the FWA by failing to return Ms Jorgensen to her pre-parental leave position;
2. breached section 83 of the FWA by failing to take all reasonable steps to give Ms Jorgensen information about the effect on her pre-parental leave position of the decision to appoint another person as the permanent Store Manager;
3. Contravened section 351(1) of the FWA by injuring Ms Jorgensen in her employment and/or altering her position to her prejudice by not returning her to her pre-parental leave position; and
4. Contravened section 351(1) of the FWA by discriminating between Ms Jorgensen and another employee when appointing the employee as Store Manager of the Corio store and attempting to transfer Ms Jorgensen to alternative and more distant Store Manager positions because of her pregnancy and/or family or carer’s responsibilities.

As a result of these findings, the Court ordered that a penalty of $5,940 be paid by the respondents to Ms Jorgensen.

[1] Fair Work Act 2009 (Cth) section 336.

[2] Ibid section 341