Adverse action in the workplace

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Here is a decision of the Federal Court of Australia which is a classic analysis of the practical application of the general protection of the Fair Work Act 2009 which is “adverse action for exercising a workplace right”, more technically legal action initiated by in this case an employee seeking relief for a number of alleged contraventions of s.340 of the Act.

The extract contains a very good formula (for want of a better word) for what an applicant must establish to succeed in raising a prima facie case, and the elements of the reverse onus of proof under s.361, and how an employer might go about discharging it.

“Mr Dutta’s case that Telstra contravened s 340(1) of the Act requires him to demonstrate, firstly, that Telstra took “adverse action” against him and, secondly, that he “exercised a workplace right”. If he is able to do so, it is presumed, under s.361(1) of the Act that the adverse action was taken because Mr Dutta exercised the workplace right.  Telstra will then be required to prove that it took the adverse action for reasons that do not include that Mr Dutta exercised such workplace rights. Telstra must prove that any such exercise of workplace rights was not an “operative or immediate” or “substantial and operative” reason for the adverse action: see Board of the Bendigo Regional Institute of TAFE v Barclay (2012) 290 ALR 647 at [102]–[104], [127]; Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (2014) 253 CLR 243 at [19], [90]–[92]………………….

Telstra’s dismissal of Mr Dutta from his employment was plainly adverse action. The decision to select Mr Dutta for redundancy altered his position to his prejudice. The decision not to redeploy Mr Dutta to an alternative position within Telstra injured him in the course of his employment. There is no difficulty in finding that each of these actions was adverse action within s.342(1)…………………….

I have found that Telstra took adverse action against Mr Dutta by selecting him for redundancy, by deciding not to redeploy him to another position and by dismissing him from his employment.  I have found that Mr Dutta exercised workplace rights by making complaints about Mr Gessey and Mr Zivcic and by requesting flexible working arrangements.  The issue that remains to be decided is whether Telstra has overcome the presumption that it took that adverse action because Mr Dutta exercised such workplace rights.

Pursuant to s.793(1) of the Act, conduct engaged in on behalf of Telstra by its employees within the scope of their actual or apparent authority is taken, for the purposes of the Act, to have been engaged in by Telstra. It is apparent that each of Mr Gessey, Mr Zivcic, Ms Pascoe, Mr Bajanemane and Mr Ford are, and were at the relevant times, employees of Telstra. Telstra has not disputed that their conduct was within the scope of their actual or apparent authority……………..

I have found that neither Mr Gessey, nor Mr Zivcic, nor any other employee of Telstra bullied harassed, targeted or isolated Mr Dutta. I have found that Mr Gessey did not carry out any plan to have Mr Dutta made redundant and to have his employment terminated, nor did he recruit any other employee to assist him in such a plan.

I have found that Telstra took adverse action against Mr Dutta by selecting him for redundancy, by deciding not to redeploy him to another position and by dismissing him from his employment.  I have found that Mr Dutta exercised workplace rights by making complaints about Mr Gessey and Mr Zivcic and by requesting flexible working arrangements.

I accept the evidence of each of the witnesses called by Telstra to the effect that they did not take adverse action, or contribute to, any adverse action taken, against Mr Dutta because he exercised workplace rights. I am satisfied that Telstra has overcome the presumption that it took the adverse action because Mr Dutta exercised workplace rights.

I reject Mr Dutta’s allegations that Telstra contravened s.341(1) of the Act……………….”

Dutta v Telstra Corporation Limited [2018] FCA 1994 delivered 13 December 2018 per Rangiah J