Carer's leave dismissal shines spotlight on adverse action claims

by Stephanie Zillman07 Aug 2012

The Fair Work Ombudsman (FWO) is prosecuting a company following the dismissal of an employee who took carer’s and compassionate leave – it has been alleged that the employee was dismissed for reasons related to accessing his leave entitlements.

A franchise business trading as Jayco Canberra is facing court this week, and in documents lodged in the Federal Magistrates Court in Sydney, FWO is alleging that a full-time employee who performed caravan repair and maintenance work was dismissed because he took paid personal/carer’s, compassionate and annual leave around the time of his mother’s death.

After taking leave in mid-December 2010 and further leave in January, 2011, FWO claims the employee had accrued entitlements for the leave he took – having been employed by the company since June, 2009 – and that he kept his employer informed about his mother’s health and his need to access the leave.

However, when the employee returned to work at the end of January 2011, he was allegedly dismissed on arrival. Co-director Roy Lustri allegedly provided the employee with a letter stating that his “performance and commitment to Jayco Canberra has failed to reach expectations”.

Court documents further allege that in recorded formal interviews with Fair Work inspectors, Roy and John Lustri stated that one of the reasons the employee was dismissed was that he had taken leave.

It is unlawful to take adverse action against an employee, such as dismissing them, to prevent an employee from exercising a workplace right, such as accessing a lawful entitlement to take leave, FWO said. If the company is found to have breached the workplace laws, the two company directors each personally face maximum penalties of $6,600, and the company overall faces maximum penalties of $33,000 per breach.

In adverse actions claims, the onus of proof lies with the employer who must prove that the adverse action was not a result of the employee attempting to exercise their workplace rights. Even commonplace actions such as informing an employee their role may be made redundant, instituting a disciplinary enquiry, investigating complaints against the employee or issuing a ‘show cause’ letter, may constitute adverse actions under the Fair Work Act if the employee can claim that this action was a result of them exercising their workplace rights.

The general protection provisions of the Fair Work Act state that an employer must not take any “adverse action” against an employee because the employee has exercised or proposes to exercise a “workplace right”, said Shana Schreier-Joffe, partner at Harmers Workplace Lawyers. However, under the act, both terms are defined very broadly.  

Schreier-Joffe said a “workplace right” includes a large range of matters, including union rights, the right to request flexible work arrangements, the right to make complaints about their employment, the right to make enquiries about pay and the right to request information about further disciplinary action.

A workplace right is defined as:

  • An entitlement, benefit, or responsibility under a workplace law, workplace instrument or an order made by an industrial body;
  • The ability to participate or initiate a proceeding under a workplace law or workplace instrument;
  • The ability to make a complaint or inquiry to a body that can enforce compliance with a workplace law or a workplace instrument.

An “adverse action” can be anything that affects an employee adversely. In simple terms this means that any disciplinary action taken against an employee, such as a suspension, or even a written warning, could constitute an ‘adverse action’.  Under the legislation, any adverse action against an employee will be deemed to have been taken for an illegitimate reason unless the employer can prove to the contrary.

Schreier-Joffe added that it is highly important for managers to be able to justify and document their reasons for the actions against employees, particularly in performance management situations, and warned employers to separate performance issues from other issues that an employee may bring up.


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