Did previous complaints against community health centre sway three-person interview panel?
The Federal Circuit and Family Court of Australia (FCFOA) recently dealt with the case of a worker who claimed his employer took adverse actions against him simply because he exercised his workplace rights.
The employee worked at a community health centre for three years.
In its defence, the employer said there was “no refusal of employment at all” because the interview panel reasonably decided the worker was not suitable for the new role based on their comprehensive and objective assessment.
Recently, HRD reported on a peculiar story about a worker who lost the job before the start date, and an employer who blocked a worker’s access to the roster without notice.
Background of case
According to the court’s decision, the worker was employed on a part-time basis as an alcohol and other drug treatment services (AOD services) withdrawal nurse in a health and medical organisation starting in May 2015.
However, the parties disagreed as to whether his employment was ongoing or pursuant to a fixed-term contract.
In May 2018, he applied for the position of clinical liaison and withdrawal nurse. A three-person panel interviewed him for the new role and decided he was not suitable for the new role, so it offered the job to a different candidate — and the worker’s employment ended.
But the worker claimed that the employer removed him from the role and failed to appoint him in the new position partly because he made complaints in August 2017 about the company’s alcohol and other drugs services manager and general manager for social support.
In January 2018, the worker filed a further complaint against his superiors and also made a Fair Work Commission (FWC) application.
However, when it came to the removal of the worker as an AOD withdrawal nurse, the employer noted that it did not take into account any of the worker’s complaints.
Moreover, the employer said that the worker did not get the new position because the rating document from each interview panel member revealed that the worker failed to meet most of the critical criteria. Hence, the decision to remove the worker from the old position and not appoint him in the new role was free from bias.
Court’s findings
Despite the employer’s claim that the decision not to employ the worker in the new role was based on an objective panel interview process, the court favoured the worker.
“The respondent contravened section 340(1) of the Fair Work Act 2009 (Cth) by taking adverse action against the applicant for a prohibited reason by refusing to employ him in the role of clinical liaison and withdrawal nurse,” the court said.
The FCFOA also explained that aside from the unsatisfactory scoring assessment of the employer, one of the panel members during the interview process did not give evidence at the hearing.
More importantly, the court noted that the employer failed to expose the decision-making process of how the worker was not “the preferred candidate” for the new role, given that he was deemed fit for the job because of his past working career.
