In a recent decision of the Federal Circuit Court of Australia (the Court), Rosa v Daily Planet Australia Pty Ltd & Anor  FCCA 312 (Daily Planet Case) employers are once again reminded that employment of an employee can only be terminated on a lawful basis.
In the Daily Planet Case the Applicant had worked for the brothel from July 2008 until 3 December 2011 as a receptionist. Being a single mother, the Applicant negotiated particular shifts. The Applicant was paid a flat rate of pay, worked four days per week for 10.5 hours per day. She was not paid sick leave, annual leave or other benefits beyond her hourly rate. Further, it was noted she did not take her breaks nor was she paid applicable overtime rates.
The Applicant alleged that the Respondent had taken unlawful adverse action by threatening to dismiss her, reducing her shifts, changed her hours of her shift and then dismissed her from her employment on the basis that she exercised her workplace right not to sign an employment agreement. The Applicant maintained that she was a permanent part time employee while and the agreement provided for casual employment.
The Respondent argued that the primary reason the Applicant had her employment terminated was that she no longer had approval to be a manager under the Sex Work Act 1994 (Vic) (the Act) as a result of drug offences. In respect of her entitlements, the Respondent submitted that the Applicant was paid above award rates for casual workers and did have an opportunity to have a break.
In the Court’s judgment, it was noted that the Applicant had been employed for a significant period of time without a manager’s licence, yet when there was only two months before she could obtain a manager’s licence she was terminated for this reason. The Court agreed with the Applicant’s submissions that the termination occurred as a result of the Applicant’s refusal to sign the employment agreement. This agreement would have converted her employment to casual employment and the Applicant risked losing shifts she had specifically negotiated with the Respondent.
The Court found that the Respondent took adverse action in threatening to alter her employment arrangements and threatening to dismiss the Applicant and then subsequently dismissing the Applicant.
The Daily Planet Case reminds employers that they cannot terminate, threaten termination or detrimentally alter the position of the employee (such as changing an employee’s shifts) on the basis that they chose to exercise a workplace right. It also reminds employers that the Courts will look to the “motivation” of the employer in its decision to take adverse action against another employee. This has been recently covered in our “no adverse action taken against dismissed employee, despite employee being genuinely sick” employment e-update article.
Shane Koelmeyer is a leading workplace relations lawyer and Director at Workplace Law. Workplace Law is a specialist law firm providing employers with legal advice, training and representation in all aspects of workplace relations, employment-related matters and WH&S.
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