What DOESN'T constitute adverse action?

Federal Courts have tackled many adverse action cases recently, addressing what doesn't constitute adverse action.

A worker who was sacked while absent, an injured employee whose recruitment prospects were cut short, and another who was subjected to an abusive "dressing down" by his manager have all lost their adverse action claims.

Carefully word termination letters

Employers that don't tread carefully when disciplining sick workers can become embroiled in a time-consuming legal battle - even if they haven't broken any laws, Lander and Rogers lawyers warn.

As a recent Federal Court adverse action case shows, such employers can face lengthy and expensive litigation before they clear their name, senior associate Paul McKaysmith and lawyer Luke Scandrett say.

"As always, prevention is better than cure," they say.

The Court heard that a worker was given until 31 May 2013 to accept a transfer to a new role, which he complained was disadvantageous to him, as part of a company restructure, but took sick leave on that day.

The worker's manager - after unsuccessfully trying to call him - terminated his employment for rejecting the new role, stating in the termination letter that "in addition to rejecting the role, you have not attended work today and have not responded to my voice message for you to explain your absence".

The Court rejected the worker's adverse action claim and found that while the manager had been "somewhat aggrieved" by the worker's absence and mentioned it in the termination letter, this wasn't an "operative reason" for the dismissal.

McKaysmith and Scandrett remind employers to carefully consider the wording of termination letters.

"Employers should be careful to ensure that, should they reach the point of terminating an employee's role, they do not provide the employee with any reason to think that they have been terminated for exercising a workplace right, whether it be for taking sick leave or otherwise," they say.

(OHS Alert subscribers can read the full story here, or you can start a trial subscription to gain access.)

Refusing to hire injured worker wasn't adverse action

There wasn't a "shred of evidence" an employer decided to end the recruitment process of an injured worker because he exercised a workplace right, the Federal Circuit Court has found in rejecting the worker's adverse action claim.

The worker suffered a compensable psychological injury in July 2008 and undertook a rehabilitation program before being found suitable for security work. He was referred to a security employer, which required him to undertake a functional assessment.

The worker failed the assessment because he had a high heart rate and couldn't perform the inherent requirements of the role, and the employer ended the recruitment process.

The worker claimed the employer took adverse action against him "because he had a workplace right arising out of his compensable injury and his rehabilitation program".

But Judge Rolf Driver said that while the worker might have "enjoyed a workplace right relating to his rehabilitation program arising from his compensable injury, there is no evidence establishing any adverse action by [the employer] because of such a right".

He said the employer made no offer of employment to the worker and there wasn't "a shred of evidence that [its] refusal (if it may be so characterised) to employ [the worker] had anything to do with his rehabilitation program or his compensable injury".

(OHS Alert subscribers can read the full story here, or you can start a trial subscription to gain access.)

Manager's "vehement" tirade nothing to do with worker's rights

The Federal Court has rejected an injured worker's claim that his employer took adverse action against him by exposing him to a manager's abusive "dressing down" and failing to offer him a return-to-work (RTW) plan.

Justice Chris Jessup found the manager's "vehement and vitriolic" tirade had nothing to do with the worker exercising his workplace right to refuse to perform a task.

In March 2011, the worker was called into his manager's office to discuss a complaint made against the worker by a colleague, and was subjected to such a severe "dressing down" that he suffered a psychological injury and was "in no condition to return to his normal work".

The manager made comments such as:

  • "Get in my fucking office. Sit your fucking arse down"; and
  • "You're useless. You're fucking toxic. You're fucking cancer".

The worker successfully claimed workers' compensation, before claiming the employer breached the Fair Work Act in taking adverse action against him.

He told the Court the "real reason" the manager abused him was because he exercised a workplace right to refuse to participate in a workplace task in October 2010 that involved duties he believed were illegal.

He also argued the employer "failed to provide him with any suitable return-to-work plan" because he complained about the manager's bullying behaviour.

But Justice Jessup found the employer consulted with the worker on his return to work on at least three occasions.

He added that there was "nothing in [the manager's] angry reaction which had any plausible connection" to the worker's refusal to participate in the workplace task five months earlier.

(The full article on OHS Alert has been unlocked for non-subscribers to read here.)

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