The company got the classification wrong for years - but the sacking was a different story
A former IT worker proved he was underpaid for years - but couldn't convince a court he was sacked over his age, race or complaints.
An Australian court has handed down a split decision that neatly captures how a general protections claim can rise or fall on a single question: why did the worker really lose the job? In a ruling delivered on August 5, 2026, the Federal Circuit and Family Court found the employer had underpaid a long-serving IT employee - but had lawfully made his role redundant.
The worker was employed by Forms Express, a mid-size e-billing company, from August 2021 until his dismissal on September 19, 2023. The company classified him as a Level 1 "graduate" employee under the Professional Employees Award 2020. He said that was wrong. With more than 30 years in IT behind him, he argued he belonged at Level 3, or at least Level 2, and had been short-changed for years.
The court agreed - to a point. It found his core work sat at Level 2: experienced professional work done without close supervision, but not the higher-level work of reshaping established methods or directing others. That put the underpayment at $19,013, plus $2,612 in superannuation - well short of the roughly $37,766 he had claimed at Level 3.
The classification finding carried a sting HR teams should note. Because the company underpaid his ordinary wages, it also underpaid his exit entitlements - annual leave, pay in lieu of notice and redundancy pay were all worked out on the wrong, lower rate. What began as one award breach became four separate contraventions.
The bigger fight was over why he lost his job. He alleged the company dismissed him because he had complained - about being bullied, about colleagues speaking languages other than English around him, and in a 12-page email criticising what he called the company's "management culture" - and because of his age and race. He was in his mid-60s and pointed out that the colleagues who kept their jobs were younger and of a different background.
Here the law shifted the burden onto the employer. Under section 361 of the Fair Work Act, once a worker shows he made a complaint or has a protected attribute like age or race, the dismissal is presumed to be for that reason unless the employer proves otherwise. This "reverse onus" meant the company had to prove a negative: that his complaints, age and race played no substantial or operative part in the decision.
It did. The court accepted that the company's managing director - appointed after a private equity firm bought the business in mid-2023 - was the sole decision-maker. His evidence was that he merged two teams to cut labour costs, which made two roles in the smaller team redundant. Six employees across the business lost their jobs in the restructure. The court found the buyer's cost-cutting drive, the fact that the worker was not singled out, and the fact that he was never replaced all supported the employer's account. The managing director's evidence held up under cross-examination.
The court weighed the timing carefully. A complaint made close to a dismissal, it noted, can look like the most potent reason for it - and the worker's email landed just as the redundancy was being settled. But the acquisition was just as close in time, and the cost-cutting logic explained the timing without any prohibited reason.
Tellingly, the court found that some of the worker's communications did legally qualify as "complaints", including a bullying complaint in April 2023 and parts of the August email. It changed nothing. Even accepting the complaints, the company proved they were not why he was let go. The court also accepted the managing director's direct evidence that age and race formed no part of his reasons.
For HR, the takeaways are concrete. Get award classification right at the point of hire - a low classification does not just shortchange wages, it quietly shrinks every entitlement pegged to that rate, and the liability stacks up on exit. A genuine, cost-driven restructure remains a strong answer to a general protections claim, even where the worker has complained and holds protected attributes - but only where the decision-maker can give reliable, first-hand evidence of why the role went. And where a complaint sits close in time to a dismissal, a clean, contemporaneous business rationale is what takes the heat out of it.
The court also noted, without ruling on it, that the consultation process looked "truncated" - a reminder that award consultation duties sit separately from general protections. The general protections claims were dismissed. Penalties, interest and costs are still to be decided at a hearing set for October 8, 2026.
