Retrenched employee wins adverse action claim on tasks allocated complaint

Retrenched employee wins adverse action claim on tasks allocated complaint

An IT worker who was made redundant shortly after raising concerns with his employer about the tasks allocated to him has won an adverse action claim after convincing the court that his dismissal was directly linked to his exercising of a workplace right (the complaint).

Mr W had been employed by Vehicle Monitoring Systems Pty Ltd (VMS) as a data analyst from 4 December 2017 until 10 March 2020. VMS designs and installs car park sensors in car parking spaces to assist with car parking guidance and car parking enforcement.

On 24 February 2020, Mr W sent an email to his manager (Chris) and one of VMS’ directors (Fraser) raising concerns about the volume of tasks he was expected to undertake outside the terms of his Position Description.

The email read, in part,

“Hi Fraser and Chris,

I have some concerns regarding my current role’s duty, responsibilities, and expectation in the company. I believe that I have been working on a significant portion of tasks falling well outside of my scope of role as a data analyst. At the same time, there is an expectation for me to do all of these tasks to the standard set beyond the expectation for the role for which I am contracted by the company to perform. This has impacted my work-life balance, while also compromising my commitment to my original role.”

In the email, Mr W indicated a willingness to do additional tasks and refocus his role if VMS were prepared to renegotiate his existing contractual terms.

The following day, being 25 February 2020, Mr W was told by the Director that his position as a data analyst was being made redundant. VMS claimed that they had been operating at a loss for several years and had insufficient work for Mr W. The termination took effect from 10 March 2020.

VMS claimed that Mr W’s email did not contribute to the decision to dismiss him or influence the decision not to offer him redeployment.

Mr W lodged an adverse action claim against VMS, claiming his dismissal was linked to his making of a complaint about his employment, for which he has a workplace right. In this case, the burden of proof that adverse action was not taken rests with VMS.

In her decision, Federal Circuit and Family Court of Australia Judge Heather Riley initially noted VMS’ claims that Mr W was one of 3 employees selected for redundancy, but the other two ultimately remained employed by the business.

As she noted, “I consider that Mr Welch decided to make Mr (W’s) position redundant after Mr Welch received Mr (W’s) email dated 24 February 2020, partly because VMS was in some financial difficulty, but also because of Mr (W’s) complaint. Without that complaint, it is possible that Mr Welch would have decided to make one of the other two roles redundant, rather than Mr (W’s), or none of them at all”.

Critically, Judge Riley also noted, “As discussed above, the reason alleged by Mr (W) does not have to be the sole reason for the adverse action. It only needs to be a substantial and operative reason. In my view, the complaint was such a reason. I consider that it was a tipping point”.

The parties will prepare separate submissions regarding the financial settlement of the matter.

W v Vehicle Monitoring Systems Pty Ltd [2022] FedCFamC2G 23 (25 January 2022)

For questions about redundancy, dealing with employee complaints, position descriptions, or other employment questions, please contact Dean Cameron at Workforce Advisory Lawyers – We Know Employment Law on 1300 925 529, 0417 622 178 or via email to

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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