When silence becomes a lawsuit, HR directors bear personal consequences
An HR director is personally named in a Fair Work lawsuit over adverse action, complaint mishandling, and return-to-work failures.
A recently decided case in the Federal Circuit and Family Court of Australia has raised a question that should give every HR professional pause: can simply failing to respond to an employee's complaint be treated as adverse action under the Fair Work Act 2009?
In Mitri v Fire Rescue Victoria, decided on 30 March 2026, the Federal Circuit and Family Court of Australia struck out the amended statement of claim in its entirety, declined to summarily dismiss the proceedings, and gave the applicant leave to refile. The claim was brought by an employee of nearly 25 years against Fire Rescue Victoria and four named individuals, identified in the judgment as the then Director of Human Resources, Commander, Assistant Chief Fire Officer, and Commissioner of the organisation.
Fadia Mitri worked for Fire Rescue Victoria and its predecessor for nearly 25 years, most recently as Manager of Training Development, before her employment was terminated on the basis of medically assessed permanent incapacity. She is seeking approximately $1,000,000 in damages, along with pecuniary penalties to be imposed on all respondents. Her claim alleges that four separate types of adverse action were taken against her in breach of the Fair Work Act's general protections provisions, as well as the applicable enterprise agreement.
The first was a role reduction from Manager of Training Development to Manager of Learning Support. The second was a direction to work from home while a complaint she had raised was being investigated. The third was an alleged failure to facilitate her return to work during the relevant period under Victoria's workers compensation legislation. The fourth concerned allegations that multiple individuals failed to respond to, consider, or address various combinations of complaints she had made.
That last allegation raised a question courts have not yet fully settled: can inaction count as adverse action? The applicant's own submissions acknowledged that "for inaction to constitute adverse action, it must amount positively to conduct of the kind described by s 342," while also relying on the principle, as explained in Farac v Pendal Group Ltd, that "a positive adverse action can be the product of inaction." The court indicated the claim could be restructured to plead a decision by a relevant person not to act in accordance with an applicable obligation, rather than mere inaction, and gave Mitri until 27 April 2026 to refile. Notably, this will be the third version of the statement of claim. The original filed in February 2025 was found deficient, and the applicant had already been afforded one opportunity to replead before the now-struck-out amended version was filed.
The claim also alleges breach of the enterprise agreement's consultation obligations, though the court found this aspect of the existing pleadings insufficiently detailed.
The inclusion of four named officers in a personal capacity is significant. Under the Fair Work Act, individuals who are knowingly involved in a breach of a civil remedy provision can be held personally liable. The court did not find that no such liability existed; it found only that the pleadings were not precise enough to establish it at this stage, leaving that question open.
General protections claims under the Fair Work Act also carry a reverse onus of proof. Once an employee establishes the basic elements of a claim, the burden shifts to the employer to disprove that the action was taken for a prohibited reason. The court drew on established authority that the reverse onus "throws onto respondents the onus of proving that which is peculiarly within their knowledge."
The case highlights that complaint response processes, return-to-work management, and consultation obligations under enterprise agreements carry real legal consequences, including potential personal exposure for named officers. A further case management hearing is set for 5 May 2026.
