Employee’s adverse action fails

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Employee’s adverse action fails

Despite significant criticism of the adversarial approach taken by both parties in an adverse action claim, and doubts expressed as to the truthfulness of witness submissions and allegations, a former employee has failed in her general protection’s claim that her employer had dismissed her from her employment because she was temporarily absent from work due to illness. Ultimately, the presiding judge accepted the employer was unaware of her claimed absence, and therefore, could not have considered that absence as part of the decision made to terminate her.

The employee had commenced work with the Company as a Field Geotechnician on a permanent full-time basis on 2 July 2021 and was subject to three-month probation. Under her employment clause, the Company was able to trigger an extension of that period which they claimed to have enacted.

The employee was dismissed on 30 October 2019, with the Company providing her with a letter stating that the reason for her dismissal was “unsatisfactory attendance”.  Importantly, she was an hour late on her last day of work, arriving without a reasonable explanation for her absence.

In the Federal Circuit Court proceedings before Judge Rolf Driver, the Company alleged that throughout her short employment period, concerns were identified with her time recording, use of company vehicle, lateness for work, early departures and personal absences, which led to her probation being extended.  The employee challenged most of these allegations, suggesting that they were either based on fabrications or misunderstandings of her behaviour and company practices.

The employee had also taken a number of personal leave absences, including 29, 30 July and 11, 14, 15 and 19 October 2019. She had supplied a medical certificate, but there was doubt whether it actually covered all the absences she had taken.

Justice Driver accepted that most of the allegations held some level of substantiation, although this was made difficult by the lack of documentation maintained by the Company.

However, those issues did not ultimately directly impact the judge’s rejection of her adverse action claim.

Justice Driver accepted the Company’s position that, by late October, her ongoing employment had become untenable. The Company explained that the reason given to her of `unsatisfactory attendance’ was intended to reflect the broader range of issues that they experienced with her during her employment.

Most importantly, Judge Driver accepted that when the decision-makers determined the outcome, termination on 30 October, they were unaware she had been absent on personal leave for the previous two days.

As he stated,

“It is, in my view, tolerably clear that the immediate cause of the termination was (her) late arrival at the workplace on 30 October 2019 following her absence on leave the previous day. This was not satisfactorily explained at the termination meeting. (She) later claimed to be sick and produced ex post facto a medical certificate verifying that she was unwell on 29 October 2019 and on 30 October 2019, but at the time of her dismissal, her absence was unexplained to (her managers).

Quite simply, the employee “has failed to establish the necessary elements of her claim. The Company has established to my satisfaction that the reason for (her) dismissal was not a prohibited reason and the dismissal did not involve a breach of the Fair Work Act”.

The application was dismissed.

L v Compaction & Soil Testing Services Pty Ltd [2021] FCCA 281 (8 July 2021)

For questions about adverse action, discrimination, or other employment questions, please contact Dean Cameron at Workforce Advisory Lawyers – We Know Employment Law on 0417 622 178, 100 WAL LAW 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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