How do the general protections work?

Adverse action taken ‘because’ of a proscribed reason

A number of the general protections provisions aim to protect employees from adverse action taken because of a particular proscribed reason. For example, s.340 of the Fair Work Act 2009 says:

       340 Protection

1. A person must not take adverse action against another person:
   1. because the other person:
      1. has a workplace right; or
      2. has, or has not, exercised a workplace right; or
      3. proposes or proposes not to, or has at any time proposed or proposed not to, exercise a workplace right; or
   2. to prevent the exercise of a workplace right by the other person. [Emphasis added]

Thus a general protections dispute occurs when it is alleged that adverse action is taken – or when a threat to take adverse action occurs – because a person has one of these rights, exercises or does not exercise such a right, or proposes or does not propose to exercise such a right.

Other general protections provisions which use ‘because’ are:

• s.346 (regarding industrial activities)
• s.351 (regarding discrimination)
• s.352 (regarding temporary absence in relation to illness or injury), and
• s.354 (regarding coverage by particular instruments, including provisions of the National Employment Standards).

The use of the word ‘because’ in these provisions means that the central question in a general protections dispute, once it has been established that adverse action was taken, will be ‘Why was the adverse action taken?’.[1]

This is a question of fact which must be answered in the light of all the facts established in the proceeding. It will involve a consideration of the reason or reasons of the person who made the decision to take the adverse action and surrounding circumstances including those of the employee at the time the action was taken.[2]

This means the Commission must determine which one, if either, of the circumstances is more likely to have occurred on the balance of probabilities.

Unless the adverse action was taken ‘because’ of a proscribed reason, then there will be no breach of the general protections provisions.

For example, if adverse action is taken against a person who is exercising a workplace right, there will only be a breach of the general protections provisions (s.340) if the exercise of the workplace right was the reason why (or a reason why) the adverse action was taken. The workplace right need only be a reason, not the only reason, for the action. If the action was taken solely for another reason – such as serious misconduct at work – then there will be no breach.

For instance, if adverse action is taken against a pregnant employee, there will be no breach of the general protections provisions (s.351) unless the employee’s pregnancy was the reason (or a reason) for the taking of the adverse action. Pregnancy does not by itself establish an immunity from adverse action.[3]

In Board of Bendigo Regional Institute of Technical and Further Education v Barclay[4] (which concerned disciplinary action taken against a union representative who sent a communication to fellow employees) the High Court noted that the attribute or activity protected by Part 3-1 does not have to be completely disassociated with the adverse action. The question is whether those protected attributes or activities were an operative factor in the decision to take the action.[5]

Examples

1. If an employee is dismissed because he or she had taken temporary leave due to illness, then the employee may be covered by the general protections provisions.
2. If an employee was dismissed while on temporary leave due to illness, but that was not a reason for the dismissal, then the employee will not be covered by the general protections provisions.

In example 1 above, the employee has been dismissed (adverse action) because they had taken a period of temporary leave, which is a protected right (reason).

In example 2 above, the employee has been dismissed (adverse action) during a period of temporary leave, which is a protected right. However the decision to dismiss was not because the employee was on leave – so the (reason) is missing.

Multiple reasons

360 Multiple reasons for action

For the purposes of this Part, a person takes action for a particular reason if the reasons for the action include that reason.

Section 360 deals with the situation where there are multiple reasons for the taking of adverse action. If one of the reasons for taking adverse action was a proscribed reason, then there will be a breach of the applicable general protections provision (where the provision is a ‘because’ provision). The proscribed reason does not have to be the sole or dominant reason. However the reason must be a substantial and operative reason.[6]

Protected reason was substantive and operative reason for dismissal

Occupational health and safety

Flavel v Railpro Services Pty Ltd [2013] FCCA 1189 (29 August 2013).

The applicant was dismissed after an incident where he refused to sit a competency test without reasonable excuse. The employer alleged he was dismissed because he failed to achieve the level of competence required to fulfil the inherent requirements of his role.

The Court found that the substantive and operative reason for the employee’s dismissal was because his health at that particular time prevented him from performing his duties. The respondent was requiring the applicant to undertake duties that they knew, or at least suspected, he would be unable to perform. The applicant was dismissed for exercising a workplace right (an OH&S right) to take reasonable care to protect his own health and safety at work, as well as the health and safety of other persons by not driving a train while being mentally or physically ill. Further, the applicant was dismissed for a mental or physical disability.

Protected reason NOT substantive and operative reason for adverse action

Maternity leave not reason for adverse action

Lai v Symantec (Australia) Pty Ltd [2013] FCCA 625 (28 June 2013).

The applicant was made redundant whilst on maternity leave.

The respondent gave evidence that the decision to terminate the applicant’s employment was for cost-cutting reasons and had nothing to do with her maternity leave. This evidence was supported by contemporaneous documents and was consistent with other evidence in the case.

The substantive and operative test was applied and the Court found that the applicant was not dismissed for a proscribed reason..

Industrial activities not reason for adverse action

Construction, Forestry, Mining and Energy Union v Bengalla Mining Company Pty Limited [2013] FCA 267 (28 March 2013).

The employee was warned and threatened with dismissal for taking unauthorised leave to attend the CFMEU’s board of management meeting.

Applications for unpaid leave were denied on several occasions due to the company’s policy requiring that paid leave be exhausted before unpaid leave is available.

The substantial and operative reason for the warning was not the employee’s participation in industrial activities, but the taking of unauthorised leave.

Union role not reason for adverse action

Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32 (7 September 2012), [(2012) 248 CLR 549].

The employee, who was his union’s sub-branch president, sent an email to other employees containing serious allegations concerning the employer’s conduct. The employee was suspended on full pay and requested to show cause why he should not be subject to disciplinary action.

The employer’s manager gave evidence that she decided to take the action against the employee because of her concern about the allegations in the email and their potential consequences, and not because of his union membership, office or activities. The manager’s evidence was accepted.

It was held that there had not been any contravention by the employer.

Exercising a workplace right or mental disability not reason for adverse action

Short v Ambulance Victoria [2015] FCAFC 55 (24 April 2015).

Decision at first instance [2014] FCA 3 (15 January 2014).

The applicant was employed as an Ambulance Paramedic. The respondent had sought expressions of interest from officers to act in a higher duties position for 9 weeks. The applicant was later involved in an altercation with the Acting Team Manager which resulted in the applicant submitting a Workcover claim asserting a psychological injury. The applicant was absent from work due to his acute stress reaction for approximately 6 weeks.

An external investigator investigated the applicant’s complaints around the altercation. The final report concluded that the applicant’s complaints were unsubstantiated and described aspects of the applicant’s behaviour as ‘inappropriate’, ‘aggressive’, ‘bullying’ and ‘intimidating’. At a counselling meeting to discuss the findings the applicant was issued with a formal warning in relation to his behaviour. After a further complaint about the investigation and report, the applicant requested a transfer to another branch, providing a report from his treating psychologist in support. As a result the respondent formed the view that it was unsafe to permit the applicant to continue working as a Paramedic whilst he was suffering from an acute stress reaction and he was stood down on full pay pending a psychological assessment.

After returning to work the applicant had a further altercation with the same manager after his request to postpone some annual leave was refused. The applicant was again stood down and after an investigation the applicant was dismissed for serious and wilful misconduct.

The applicant alleged the respondent took adverse action against him in contravention of s.340 of the Fair Work Act by refusing to appoint him to perform higher duties; issuing him with a formal warning; standing him down from employment; and terminating his employment. The applicant alleged that the adverse action was taken because he had exercised a workplace right by making complaints or inquiries in relation to his employment. The applicant further alleged that the respondent took adverse action against him in contravention of s.351 by refusing to appoint him to perform higher duties because of his mental disability (within the meaning of s.351).

In the decision at first instance, after consideration of all of the issues the primary judge dismissed the application, finding that the respondent did not take adverse action against the applicant because he had exercised a workplace right or because he had a mental disability. The applicant appealed citing 11 grounds for appeal. The Full Court was not satisfied that the primary judge fell into error in respect of any of the appeal grounds alleged and dismissed the appeal.

Making complaints not reason for adverse action

Kweifio-Okai v Australian College of Natural Medicine (No 2) [2014] FCA 1124 (21 October 2014).

The applicant was employed by the respondent as a Program Leader pursuant to a fixed term contract of employment. Disputes arose between the applicant and the respondent’s Director of Education, who was the applicant’s supervisor, relating to the performance of the applicant’s duties. This dispute gave rise to allegations of misconduct. The applicant was informed that the respondent proposed to investigate the allegations and he was suspended on full pay pending the outcome of the investigation. After considering the investigator’s findings and the applicant’s responses, the applicant was advised that the respondent had elected not to renew his contract.

The respondent accepted that the suspension and failure to re-engage the applicant both constituted adverse action within the meaning of the Fair Work Act. It maintained, however, that the adverse action had not been taken ‘because’ of the making of the complaints but rather because of the conduct of the applicant.

The Court found that the operative and immediate reasons for the employer having taken adverse action against the applicant was not because the applicant exercised the workplace right to make a complaint in relation to his employment.

Other general protections provisions are not based on adverse action being taken ‘because’ of a particular proscribed reason. Some provisions contain a direct prohibition on certain types of action; for example s.344 prohibits employers from exerting undue influence or pressure on employees to do certain things. Some provisions depend upon the existence of a certain state of mind in the person who took the action; for example, s.345 prohibits the making of false and misleading representations about certain matters to certain persons ‘knowingly or recklessly’. Other provisions prohibit certain actions taken with a particular intent, for example s.348 prohibits organising, taking, or threatening to organise or take any action against another person with ‘intent’ to coerce that person or a third person to do certain things.

Knowingly or recklessly

Whether a person made a representation knowingly can be determined by an enquiry into what the person knew about the statement in question. A reckless representation is a representation made by someone who is careless or indifferent as to its truth.[7]

With intent

Where a provision prohibits a person taking action with the intent of bringing about a certain result, a person’s intent may be established by evidence of their knowledge of the circumstances which gives the act its character. If such knowledge is established, the person will have breached the provision even if the person believed that the act was lawful. Actual knowledge is necessary, but a person who deliberately refrains from making enquiries because that person knows the probable consequences of the enquiries may be found to have constructive knowledge of those consequences, which may be regarded as equivalent to actual knowledge of the consequences.[8]

Related information

• Undue influence or pressure – s.344
• Misrepresentations – s.345
• Coercion – s.348