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Employer successfully rebuts presumption in adverse action claim

An employer has successfully defended an adverse action claim brought by a former employee as the court was satisfied that the employee was not dismissed for a prohibited reason.

An employer has successfully defended an adverse action claim brought by a former employee as the court was satisfied that the employee was not dismissed for a prohibited reason.

In Li v Star Track Express Pty Limited [2024] FedCFamC2G 430, the employee alleged that StarTrack Express (StarTrack) took adverse action against him during his employment and by terminating his employment because he made a number of complaints in breach of section 340 of the Fair Work Act 2009 (Cth) (FW Act) and because of his Asian race and physical and mental disabilities in breach of section 351 of the FW Act.  

The employee also alleged that Star Track contravened section 352 of the FW Act by dismissing him because of a temporary absence from work due to illness or injury.  

The employee was employed as a freight handler for StarTrack. The employee alleged that he was dismissed from his employment because he exercised workplace rights to make a complaint on 14 occasions and that StarTrack took adverse action against him for exercising those workplace rights 12 times, including terminating his employment.

The employee submitted that he made the following complaints, including:

  • That employees were smoking in the bathrooms;
  • That a colleague had called him a “Chinese spy” and another colleague called him “Mr Corona”;
  • Breaches of StarTrack’s COVID safety protocols;
  • Health and safety complaints about the height of pallets and operation of a forklift by a colleague;
  • Complaints to third parties including Comcare and the Australian Human Rights Commission;
  • Whistleblower complaints that StarTrack had not investigated his complaints.

The employee also lodged a stop bullying application in the Fair Work Commission and an application to the Victorian Civil and Administrative Tribunal alleging racial discrimination by StarTrack.

From January 2021, the employee was absent from work due to health issues. While he initially provided medical certificates to support his absence after 21 April 2021, he did not provide evidence to support his absence.

In June 2021, StarTrack reached out to the employee asking him to provide medical evidence supporting his absence from work. This letter was followed up by further correspondence to the employee in August 2021 which contained questions for the employee’s treating doctor to answer about his capacity to perform the inherent requirements of his role.

After receiving no response from the employee, StarTrack wrote to the employee outlining that it was considering terminating his employment on the basis that:

  • he was unable to perform the inherent requirements of his role;
  • he had failed to attend for work without explanation; and
  • he had not complied with its policies and procedures about providing evidence to support his absence from work.

While the employee received the letter, he did not attend the meeting. StarTrack subsequently terminated the employee’s employment.

The Court noted that the employee had a strong belief that all his issues in his employment started after his initial smoking complaint and thereafter he was targeted by management and that he had been victimized because he was a whistleblower.

Before the Court, StarTrack provided evidence that it had fairly and reasonably dealt with each of the employee’s complaint and that it did not take any adverse action against him during his employment because he made complaints.  

The Court found that StarTrack did not engage in adverse action against the employee during the course of his employment.

In relation to the termination of the employee’s employment, the Court accepted the evidence of StarTrack that the reasons for the dismissal was the employee’s:

  • failure to attend for work without satisfactory explanation
  • failure to comply with StarTrack’s policies and procedures
  • failure to respond to the show cause meeting or a attend the meeting to discuss the proposed termination of his employment; and
  • inability to perform the inherent requirements of his role.

The Court was satisfied that StarTrack had rebutted the presumption that adverse action was taken because the employee had exercised workplace rights and had proven that its decision to terminate the employee’s employment was not for any proscribed reason.

The Court also found that StarTrack had not contravened section 352 of the FW Act when it dismissed the employee.

Accordingly, the application was dismissed.

Lessons for employers

In general protections matters, employers have the onus of proving that adverse action taken against an employee was not for a prohibited reason.

It is not uncommon for employees to have a belief that adverse action was taken against them for a prohibited reason despite there being clear reasons for the action, which is unrelated to the protections under the FW Act.

It becomes of utmost importance that employers have direct evidence of the real reason that action was taken in order to rebut the presumption that adverse action was taken for a prohibited reason.

Information provided in this blog is not legal advice and should not be relied upon as such. Workplace Law does not accept liability for any loss or damage arising from reliance on the content of this blog, or from links on this website to any external website. Where applicable, liability is limited by a scheme approved under Professional Standards Legislation.

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