Muddying the waters: Adverse action taken against employee for failure to perform duties

The general protections provisions under the Fair Work Act 2009 (Cth) (FW Act) make it unlawful for an employer to take adverse action against a person for a prohibited reason. Often, however, employees include claims of bullying and harassment that have the effect of “muddying the waters” about the real reason that adverse action was taken.

In Turley v James Frizelles Automotive Group [ 2018] FCCA 2989, an employee claimed that his employer took adverse action against him because he exercised or proposed to exercise a workplace right and that he was dismissed from his employment because he was temporarily absent from work due to stress from bullying and harassment.

The employee was employed as a Finance and Insurance Business Manager at the employer’s Hyundai dealership. In January 2017, the employer introduced a mechanical protection program that provided customers with extended warranty for vehicles. The new warranty program required business managers to enter customer details in the employer’s computer system.

The employee refused to implement the new warranty program and made a number of complaints. These complaints included that the program was a “major workplace change” which he was not consulted on and that it constituted additional duties not within his job description and for which he should receive additional remuneration. The employer met with the employee and explained that the warranty program was within his job description and was an additional administrative task that would take up to fifteen minutes each day.

The employee was issued with a warning and placed on a performance improvement plan in relation to implementing the warranty program. At the same time, the employee also made complaints alleging that he was bullied and harassed by his colleagues.

As a result of his failure to implement the warranty program and non-compliance with the improvement plan, the employee was issued with another warning. The employee’s employment was then terminated – two days after he returned from being on leave for anxiety and stress.

The Federal Circuit Court was satisfied that the employee had workplace rights to make complaints and that the employer’s actions of issuing the employee with warnings, placing him on an improvement plan and terminating his employment was adverse action.

However, the Court was not satisfied that the employer took this adverse action because the employee exercised a workplace right or because he was temporarily absent from work. Rather, the Court was satisfied that the substantial and operative reason for the employer issuing the employee with a warning, placing him on a performance improvement plan and terminating his employment was the employee’s “obdurate position” of refusing to implement the warranty program.

In relation to the employee’s claims of bullying, the Court was not satisfied that he was ostracised, finding that the employee had placed himself in opposition to the warranty program which:

appears to have created a mentality of agitation and vulnerability through which the applicant interpreted the respondent’s pressure for implementation of the Harrier program, the warnings and the PIP, as a form of prosecution when objectively they were reasonable responses of the respondent to his inflexibility.

Accordingly, the Court dismissed the employee’s application.

Lessons for employers

Under the general protection provisions of the FW Act, there is a presumption that adverse action was taken for a particular reason or with a particular intent – and it is up to the employer to prove that the action was not taken for a prohibited reason.

It is not uncommon in disciplinary or performance management matters for employees to claim that they were bullied and harassed and that their employment was terminated for this reason, rather than reasons relating to their conduct or performance.

Accordingly, as demonstrated with this case, it is important 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.

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.

02 9256 7500 | sydney@workplacelaw.com.au

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.

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