An employer has successfully defended an adverse action claim brought by a former employee as the court was satisfied that the employee was not dismissed for a prohibited reason.
In Li v Star Track Express Pty Limited [2024] FedCFamC2G 430, the employee alleged that StarTrack Express (StarTrack) took adverse action against him during his employment and by terminating his employment because he made a number of complaints in breach of section 340 of the Fair Work Act 2009 (Cth) (FW Act) and because of his Asian race and physical and mental disabilities in breach of section 351 of the FW Act.
The employee also alleged that Star Track contravened section 352 of the FW Act by dismissing him because of a temporary absence from work due to illness or injury.
The employee was employed as a freight handler for StarTrack. The employee alleged that he was dismissed from his employment because he exercised workplace rights to make a complaint on 14 occasions and that StarTrack took adverse action against him for exercising those workplace rights 12 times, including terminating his employment.
The employee submitted that he made the following complaints, including:
The employee also lodged a stop bullying application in the Fair Work Commission and an application to the Victorian Civil and Administrative Tribunal alleging racial discrimination by StarTrack.
From January 2021, the employee was absent from work due to health issues. While he initially provided medical certificates to support his absence after 21 April 2021, he did not provide evidence to support his absence.
In June 2021, StarTrack reached out to the employee asking him to provide medical evidence supporting his absence from work. This letter was followed up by further correspondence to the employee in August 2021 which contained questions for the employee’s treating doctor to answer about his capacity to perform the inherent requirements of his role.
After receiving no response from the employee, StarTrack wrote to the employee outlining that it was considering terminating his employment on the basis that:
While the employee received the letter, he did not attend the meeting. StarTrack subsequently terminated the employee’s employment.
The Court noted that the employee had a strong belief that all his issues in his employment started after his initial smoking complaint and thereafter he was targeted by management and that he had been victimized because he was a whistleblower.
Before the Court, StarTrack provided evidence that it had fairly and reasonably dealt with each of the employee’s complaint and that it did not take any adverse action against him during his employment because he made complaints.
The Court found that StarTrack did not engage in adverse action against the employee during the course of his employment.
In relation to the termination of the employee’s employment, the Court accepted the evidence of StarTrack that the reasons for the dismissal was the employee’s:
The Court was satisfied that StarTrack had rebutted the presumption that adverse action was taken because the employee had exercised workplace rights and had proven that its decision to terminate the employee’s employment was not for any proscribed reason.
The Court also found that StarTrack had not contravened section 352 of the FW Act when it dismissed the employee.
Accordingly, the application was dismissed.
In general protections matters, employers have the onus of proving that adverse action taken against an employee was not for a prohibited reason.
It is not uncommon for employees to have a belief that adverse action was taken against them for a prohibited reason despite there being clear reasons for the action, which is unrelated to the protections under the FW Act.
It becomes of utmost importance that employers have direct evidence of the real reason that action was taken in order to rebut the presumption that adverse action was taken for a prohibited reason.
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