The Chief Operating Officer of Macarthur and South West United FC (the Club) has launched legal proceedings against the Club, the Club Chair and another director alleging breaches of the general protections provisions under the Fair Work Act 2009 (Cth) (FW Act).

The FW Act provides protections including but not limited to, protection from adverse action for exercising workplace rights, for engaging in industrial activity and for temporary absence due to illness or injury. The FW Act also provides protection from discrimination on the basis of a protected attribute.

Penalties apply for breaches of the adverse action provisions of the FW Act. The maximum penalty is currently $12,600 for an individual and $63,000 for a body corporate. 

In his claim filed in the Federal Circuit Court of Australia, the employee has alleged that he was discriminated against on the basis of his caring responsibilities in breach of section 351 of the FW Act. The employee alleges that, after the Club Chair was appointed in February 2020, his duties were reallocated to another director without consultation.

The employee also claims that the Club Chair refused to assure him of the security of his position and that this uncertainty caused him mental distress. The employee  claims that his health worsened following allegations from the Club Chair that he had breached his employment contract by forwarding work emails to a personal email account, and after a journalist indicated to him that his position was under threat as he was going to be “purged” by the Club.

The employee has been certified as unfit from work since March 2020 and has not worked since this time.

In the claim, the employee is seeking $200,000 in damages for shock and distress, medical expenses, his costs for relocating from Queensland to Sydney and for diminution of employment opportunities. The employee is also seeking compensation and penalties for breaches of the FW Act.

Under the FW Act, the Federal Circuit Court also has the power to “make any order the court considers appropriate” if it is satisfied that a person has contravened a civil remedy provision, such as the general protections provisions. This includes making an order to award compensation for loss suffered as a result of the contravention, as sought by the employee in this matter.

Lessons for Employers

This claim is an important reminder to sporting organisations, professional or otherwise, that the general protections provisions in the FW Act apply to all employers and significant penalties can apply for contraventions. It is also a timely reminder that an employee does not have to be dismissed from their employment before they can make a general protections claim. An employee may make a claim alleging adverse action at any time during their employment.

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