The probation period is commonly used by employers to assess the suitability of an employee for ongoing employment. One of the reasons that the probation period is of benefit to employers is because, when aligned with the minimum employment period set out in the Fair Work Act 2009 (Cth) (the FW Act), it allows an employer to end the employment relationship before an employee becomes entitled to protection from unfair dismissal.
However, a recent interim decision of the Federal Court of Australia (the Court) should serve as a warning to employers that they should not wait until the very last moment of the probation period to effect a dismissal – otherwise, they run the risk of being found to be in breach of the general protections provisions of the FW Act.
In the decision of Dabboussy v Australian Federation of Islamic Councils [2024] FCA 1074, the Court heard an application by the Chief Executive Officer of the Australian Federation of Islamic Councils (the Employer) who had been recently dismissed and was seeking urgent relief in the form of reinstatement to his position.
The employee had been employed as the Chief Executive Officer since 4 September 2023 until his summary dismissal was effected at 4.40pm on 3 September 2024. The employee would have completed the minimum employment period and would therefore have been entitled to make a claim of unfair dismissal from 4 September 2024.
The employee was summarily dismissed from his employment following an investigation into allegations of sexual harassment against him. The investigation found that the employee had made a comment to his new executive assistant upon meeting her to the effect that, “the camera does not do you justice”, which was unwanted and uninvited.
The timing of the investigation was such that the employee was interviewed on 28 August 2024 and was provided a copy of his interview transcript for approval on the morning of 2 September 2024.
Also on the morning of 2 September 2024, the Executive Council of the Employer held an emergency meeting in relation to the employee’s employment. In that meeting, it was agreed that the President was authorised to dismiss the employee assuming that the final report (which was yet to be received at that point) confirmed the allegations were substantiated.
On the morning of 3 September 2024, the employee approved his interview transcript. By 4.40pm that day, the employee was notified of his summary dismissal.
The employee then commenced proceedings in the Court seeking orders that he be reinstated and that the Employer not dismiss him from his employment.
One of the submissions made by the employee was that the Employer breached the general protections provisions of the FW Act by terminating his employment seven hours short of the minimum employment period that would have entitled him to bring an unfair dismissal claim.
Relevantly, the general protections provisions of the FW Act prohibit adverse action being taken against a person to prevent them from exercising a workplace right. In this case, the employee submitted that the Employer had done exactly this in dismissing him in the manner that it did.
Having regard to the sequence of events summarised above, the Court considered that the employee had established a “prima facie” case (i.e., on the face of it) that the Employer had breached the general protections provisions of the FW Act.
The Court also considered that the inconvenience to be suffered by the employee if interim relief was not granted would outweigh any injury to be suffered by the Employer if the interim relief was granted.
In doing so, it noted that while other employees might be uncomfortable with the employee being reinstated to the workplace, there was nothing stopping the Employer from standing the employee down or directing him to work from home until the matter could be properly determined.
The Court also noted the significant financial difficulties that would be faced by the employee if he was not reinstated, noting that it would likely result in him having to sell his family home.
Therefore, the Court made orders for the reinstatement of the employee and prohibiting the Employer from terminating his employment without leave of the Court.
The matter remains ongoing and is listed for a final hearing in February 2025.
As mentioned above, this decision should serve as a warning to employers that there is still some risk in dismissing an employee within the minimum employment period. Specifically, there is a risk that it may be found to constitute unlawful adverse action, even if the employee does not yet have the right to claim unfair dismissal.
For this reason, employers should be proactively reviewing an employee’s suitability and making decisions about ongoing employment well before the end of the minimum employment period. Employers should also ensure that any performance or conduct concerns are well documented and managed as soon as they arise.
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