The general protections provisions of the Fair Work Act 2009 (Cth) (FW Act) aim to protect employees from adverse action (including dismissal) because of a proscribed reason. Proscribed reasons include the existence of a workplace right and the exercise (or failure to exercise) a workplace right.
By way of example, an employee has a right to take leave, engage in industrial activity and make workplace complaints.
However, the existence of a workplace right (or exercise thereof) will not automatically preclude an employer from taking adverse action if the “substantive and operative” reason for taking the adverse action is not the workplace right.
In Ibarra Campoverde v Regional Health Care Group Pty Ltd  FCCA 1502, the Federal Court has recently found that an employer’s decision to dismiss an employee was not based on him having made a workplace complaint, even though the complaint prompted the investigation which resulted in the termination of his employment.
The employee, a picker at the employer’s warehouse, was involved in a workplace incident in which the employee alleged he was sworn at and physically assaulted by a colleague after the employee tripped over a rubbish bin.
The employee advised his manager that he intended to lodge a complaint about the incident and it was alleged that his manager threatened to terminate his employment if he did so.
The employee then attempted to meet with the company’s Chief Operating Officer (COO) (who was also their HR manager) to report the incident. Even though the COO was on annual leave, the employee was invited to give a statement in the meantime. Upon being notified of the incident, the COO determined to stand the employee down with pay until an investigation could be completed upon her return.
Upon completion of the investigation, the employee was dismissed on the grounds of misconduct.
The employer provided evidence in the proceedings that the investigation found the employee:
- Was the aggressor in the workplace incident;
- Was aggressive and intimidating to other staff when attempting to report the incident; and
- Had a poor performance history.
The employer submitted that the decision to dismiss the employee was based on the findings of misconduct in the investigation and not that the employee had made the workplace complaint which prompted the investigation.
Judge Cameron agreed with the employer’s submissions and dismissed the case.
His Honour made clear that the mere fact that adverse action is taken against an employee who engages in conduct that is:
- in breach of the employer’s policies; and
- involves the exercise of a workplace right,
is an “insufficient” connection to establish that such adverse action was in contravention of the FW Act.
His Honour found the evidence supported the conclusion that the reason for the employee’s dismissal was his poor behaviour and the decision-maker (i.e. the COO) was not influenced by any other factor or person in coming to that decision.
Lessons for employers
This is a reminder of the importance of the word “because” in section 340(1)(a) of the FW Act.
Just as employees are entitled to exercise (or to not exercise) workplace rights, employers are entitled, if it is so warranted, to investigate incidents relating to employee conduct and engage in disciplinary action.
When the exercise of a workplace right is entangled with the conduct which was the reason for disciplinary action, the courts have shown a willingness to untangle those threads and separate the workplace right from the conduct.
Thus, the fact that such conduct might involve the exercise of an employee’s workplace right is not determinative of a contravention of the general protections provisions. The central question revolves around the state of mind of the relevant decision-maker and is a question of fact to be determined in the particular circumstances of a matter.
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