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The game is up: adverse action compensation includes allowance for hurt and humiliation

The Fair Work Commission, in a very rare consent arbitration of a general protections claim (Masson-Forbes v Gaetjens Real Estate Pty Ltd (2015)] FWC 4329 delivered 26 June 2015), has awarded economic and non-economic compensation for unlawful adverse action in the form firstly of a forced resignation and then bringing forward the applicant’s resignation after she provided 2 months’ notice.
Workplace rights
The applicant alleged that the adverse action was taken against her because she exercised a workplace right to be lawfully absent from work due to illness, that she made a workers compensation claim and had taken approved annual leave. These were accepted by Commissioner Wilson to constitute the exercise of workplace rights, accepting Khiani v Australian Bureau of Statistics (2011) FCAFC 109 and Ross v RC Mackenzie & Sons (2013) FMCA 31 and see also CFMEU v Leighton Contractors Pty Ltd (2012) FMCA 487, (2012) 225 IR 197 and Stephens v Australian Postal Corporation (2010] FMCA 1012; (2010) 202 IR 437.
The Commissioner also accepted the applicant’s case that she was participating in a lawful activity organised or promoted by an industrial association within the meaning of the protection conferred by s.346(b) of the Fair Work Act.
Adverse action
The Commissioner also accepted that the applicant had been subject to adverse action because of the above, holding that “unilaterally substituting an earlier termination date for a date an employee has indicated to an employer on which they will resign has been held to be a termination at the initiative of the employer: per Nohra v Target Australia Pty Ltd (2010) FWA 685756.”
Reason for prohibited action
The Commission accepted that “the respondent has failed to demonstrate that its reasons for acting in the way it has in relation to (the applicant) was for reasons that were not those as alleged by her….there is not a (contrary) plausible reason advanced”.
Reverse onus of proof
The Commissioner cited Bendigo Institute v Barclay [No 1] [2012] HCA 32, (2012) 248 CLR 500, at 45, per French CJ and Crennan J, and Construction, Forestry, Mining and Energy Union v Bengalla Mining Company Pty Limited (2013) FCA 267 at 53 about the reverse onus of proof.
Compensation not limited to economic loss
The Commissioner cited Australian Licenced Aircraft Engineers Association v International Aviation Service Assistance Pty Ltd [2011] FCA 333 and went on to say “The authorities reveal that the assessment of compensation under s.545(1) and (2) of the Fair Work Act can include both economic and non-economic loss. Insofar as economic loss is concerned, the approach that seems to find favour is that stated in Re Bostik Australia Proprietary Limited v Gorgevski (1992) FCA 209; (1992) 36 FCR 20. The relevant passage is as follows: “Where an employee is wrongfully dismissed, he is entitled, subject to mitigation, to damages equivalent to the wages he would have earned under the contract from the date of the dismissal to the end of the contract. The date when the contract would have come to an end, however, must be ascertained on the assumption that the employer would have exercised any power he may have had to bring the contract to an end in the way most beneficial to himself; that is to say, that he would have determined the contract at the earliest date at which he could properly do so….. Bostik was a different case to this one. It was dealing with wrongful dismissal, and there are some other factual differences. But the principle remains apposite. It has been applied, most recently, by Barker J of the Federal Court in Australian Licensed Aircraft Engineers Association v International Aviation Assistance Pty Ltd (2011) FCA 333. It is the principle that I intend to apply in this case.” Heriot v Sayfa Systems Pty Limited (No.2) (2014) FCCA 1627, at 8 – 9”

The Commissioner ordered the respondent to pay compensation for the applicant’s economic loss less a discount for contingencies plus $3,000 for hurt and humiliation and ordered a further sum to be paid to the applicant’s superannuation fund.

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