Individual 'dismissed due to underperformance,' employer argues
The Federal Circuit and Family Court of Australia (FCFCOA) recently dealt with a case involving a worker who argued his employer took adverse action against him because of exercising his workplace rights.
In its defence, the employer argued that it dismissed the worker on the grounds that he had a poor performance during his employment.
Alleged retaliation
Prior to the case, the worker commenced employment on 4 September 2017 with the business that provides security services to its clients.
“In a responding email, the Applicant [worker] accepted the terms of the Employment Agreement,” the case noted.
“The Applicant [worker] acknowledged that he had read the contract and did not identify any issues with the document, aside from wanting his title to be ‘Strategic Development Manager’ rather than ‘Operations Manager Electronics,” it added.
The worker argued that throughout his employment, he witnessed and was subjected to alleged unprofessional conduct from his manager then.
He said that the employer dismissed him for exercising his workplace right to make complaints about his employment.
“The Name Complaint and the Professionalism Complaint expressed the Applicant’s [worker’s] request that [the manager] refrain from using a specific profane term being “cunt”, in the workplace,” the Court stated.
“The Communication Complaint expressed the Applicant’s [worker’s] concern about [the employer’s] behaviour and a request that this behaviour be addressed,” it added.
The worker further contended that his employment was terminated because he exercised his right to a paid personal leave when he was temporarily absent from work because of illness or injury.
Despite such claims, the employer noted that it terminated the worker’s employment for reasons that did not include his exercise of workplace rights nor his temporary absence from work.
“The Respondent [employer] submitted that simply because the Dismissal occurred after the Complaints and the Applicant’s [worker’s] Paid Personal Leave on 6 and 7 September 2018, did not mean that they constituted substantive and operative reasons for the Dismissal,” the FWC stated.
The employer contended that the only reason for the worker’s employment termination was his poor performance.
HRD previously reported an unfair dismissal case involving a worker who allegedly reported incidents in the workplace that were either untrue or exaggerated.
Court’s decision
After examining the case, the FCFCOA found one finding of adverse action by the employer against the worker regarding his exercise of a workplace right.
While the employer submitted that the underperformance of the worker was a reason for his dismissal, the Court was not satisfied that it was the only operative and substantive reason for his dismissal.
The complaint made by the worker along with his poor performance (whether well-founded or not) were the substantial and operative reasons for the worker’s dismissal according to the Court.
Meanwhile, in relation to the worker’s exercise of paid leave, the FCFCOA was satisfied that the worker was not dismissed because of his absence from work.
Ultimately, because of the employer’s adverse action against the worker, the Court noted that the worker is entitled to compensation amounting to $93,500 plus interest thereon along with a declaration and a right to seek penalties in respect of the contravention.
