Adverse Action claim from terminated employee rejected


Adverse Action claim from terminated employee rejected

The Fair Work Commission has rejected an adverse action claim brought by a union on behalf of a member who had been terminated primarily for breaching workplace confidentiality.

The employee, SJ, had been employed as a Quality Control Officer by Primo Foods Pty Ltd in a meat manufacturing plant at Wacol in western Brisbane from 12 December 2015 until his termination on 9 April 2021. Primo is a long-established Australian business that produces and sells a wide range of smallgoods.

The reasons given for Mr J’s termination were that he was in possession of confidential information in breach of the company’s code of conduct and ethics, that he had initiated discussions with several team members concerning their terms and conditions of employment, and that these discussions had a negative impact on the company introducing a new salary structure to the business.

Further, the company believed that Mr J had been dishonest in discussions with the company’s human resources officer during the subsequent misconduct investigation.

In contrast, the Australian Meat Industry Employees Union (AMIEU), on behalf of Mr J, claimed that his termination was linked to a workplace bullying complaint that he had made in the Commission against a manager in 2021. He said that the company had taken adverse action by terminating him for a number of reasons linked to his complaint, including a workers’ compensation claim and taking personal leave to deal with the situation.

The adverse action claim was wholly dismissed by Federal Circuit court Judge Gregory Egan.

He accepted the testimonies of several co-workers that Mr J had asked them about their individual contracts despite knowing that the matters were bound by strict confidentiality provisions. He also acknowledged the contemporaneous file notes taken by a co-worker after Mr J had approached him.

As the Justice noted,

“The conversation as recorded by Denby was consistent with what Denby said Johnson had earlier told him he would do when the time came for Mr J to respond to any salary offer made to him. Further, as to the question of individual employment conditions being considered strictly confidential by the respondent, Denby had already made that clear to Mr J in an email dated 23 September 2020”.

In summary, Justice Egan noted,

“The Court finds, on the balance of probabilities, that the reasoning behind the decision of Williams to recommend termination, and behind the decision of Cook to effect termination, were unaffected by any of the matters pleaded by the applicant as constituting prohibited reasons for such termination … The respondent has rebutted the presumption that the adverse action taken against Johnson was taken for any prohibited reason”.

Consequently, Mr J’s claim was accordingly dismissed.

Australian Meat Industry Employees Union v Primo Foods Pty Ltd [2022] FedCFamC2G 540 (5 July 2022)

For queries about misconduct, termination, adverse action, or other employment questions, please contact Dean Cameron at Workforce Advisory Lawyers – We Know Employment Law on 1300 WAL LAW, 0417 622 178 or via email to dean.cameron@workforceadvisory.com.au

Disclaimer: This information is provided as general advice on workplace relations and employment law. It does not constitute legal advice, and it is always advisable to seek further information regarding specific workplace issues. Liability limited by a scheme approved under professional standards legislation.

 

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