A recent case has provided further guidance in Australian employment law on the role of multiple decision-makers in matters involving the termination of employment. 

This case serves as a critical lesson for HR and employers on the importance of either a unified approach by all decision-makers involved in the termination process, or having a single impartial decision maker. 

The case also illustrates the importance of employers providing thorough and transparent reasons for termination of employment.

A brief outline of the case in question

In April 2020, a former employee and truck driver for a freight and logistics employer filed an adverse action application, alleging that the employer wrongfully dismissed him from his position.      

Among other allegations, he claimed that this action was in contravention of statutory protections, as he had exercised a workplace right and believed that the dismissal was in response to him exercising this right.

The Federal Circuit and Family Court found that the former employee’s dismissal was not due to alleged safety breaches or unprofessional behaviour as asserted by the managers. Rather, the Court found that the dismissal constituted unlawful adverse action against the former employee by the employer in relation to having exercised workplace rights, including requesting flexible work arrangements, querying the alleged underpayment and initiating proceedings with the Fair Work Commission.

The dismissal occurred after the national HR manager perceived the former employee’s queries about a flexible work arrangement to care for his child, and his queries about alleged underpayment, as “badgering” and “harassing”. 

The Court found that most of the former employee’s email interactions were respectful, and that he was seeking solutions to genuine issues, not harassing the HR manager. 

The HR manager acknowledged to the Court that in the event of significant safety violations involving an employee, it would be standard procedure for the overseeing manager to initiate a comprehensive investigation. However, the HR manager admitted that there was no paperwork before the Court about any investigation having been conducted into any of the alleged safety matters involving the former employee.

The Court highlighted that there was no documented evidence showing how the single alleged safety incident, which reportedly resulted in a “verbal warning”, transformed into a history of safety issues in breach of the employer’s ‘Three Strike Policy’, or “continual breaches” of that policy, which were given by the employer as reasons for the dismissal decision. 

The Court pointed out that there was a deficiency of credible evidence from the employer regarding the investigation and clarification of supposed safety issues involving the former employee. Moreover, evidence of the explanations provided by the employer for the dismissal was either non-existent or lacked credibility as to how the alleged safety concerns were factored into the decision to terminate the worker’s employment. 

This lack of evidence and plausible explanation convinced the Court that the alleged safety issues likely never occurred. Further, the Court held that the safety issues could not have been significant or influential factors in the decision to dismiss the former employee. 

The Court found no evidence of the serious safety issues that were claimed to have occurred, and accordingly, concluded that these could not have been substantive or valid reasons for the dismissal.

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The intricacies of decision-making in dismissal cases

A key aspect of this case was the involvement of multiple decision-makers, including the national HR manager, a partner of the business, the national transport manager and two state-level managers. 

Despite there being five decision makers, only two of these individuals provided evidence to the Court about the reasons for the dismissal of the former employee – the national HR manager, and the national transport manager. 

The Court found no explanation or evidence capable of discharging the reverse onus imposed on the employer in matters like this. 

Accordingly, the Court was satisfied that adverse action had been taken against the former employee by the employer in dismissing him from his employment for exercising his workplace rights.

Understanding the reverse onus of proof 

Under the applicable Australian law, once an employee establishes an apparent case that their dismissal may have been due to the exercise of workplace right(s), the onus shifts to the employer to prove otherwise. 

In this case, the employer had failed to discharge the reverse onus as it did not provide sufficient evidence or explanation from all decision-makers involved in the dismissal of the former employee.

The Court determined that the employer did not provide adequate evidence to counter the presumption that the former employee was dismissed for exercising his workplace rights. 

The absence of evidence from other decision-makers besides the national HR and transport managers left the Court without a substantive defence from the employer. 

The ruling stated: ‘There was no opportunity for the state of mind or mental processes of the not-called other joint decision-makers to be exposed to or considered by the Court. Further, the Court can also infer that those other joint decision-makers were not called because their evidence may not have assisted [the employer’s] case that the reasons for the dismissal were limited to alleged safety issues and alleged unprofessional behaviour.” 

The judge noted that the former employee’s minor disrespect in an email came late in a series of communications and did not justify dismissal. Instead, the timing suggested that a reason for dismissal may have been the former employee’s threat to involve the Fair Work Ombudsman, which occurred the day before the discussion of his dismissal.

Further, the national HR manager and national transport manager admitted that they had omitted some reasons for the former employee’s dismissal in the dismissal letter. The Court found that these omitted reasons included the former employee’s complaints about underpayment, which are a protected workplace right. 

Lessons for HR and employers 

This case highlights several important lessons for HR and employers. Firstly, it’s essential that all decision-makers are aligned and that their reasons for termination are comprehensively documented and presented. 

Had the employer in this case led uniform evidence from all the decision-makers about the reasons for termination, the result may have been different. Discrepancies or omissions in the reasons for dismissal will likely be detrimental, as seen in this case.

Secondly, employers must be aware of the reverse onus of proof where purported workplace rights are being exercised and prepare accordingly. This involves having a clear, documented rationale for termination that is not related to an employee exercising a workplace right. 

Finally, where possible, employers should elect to have an impartial and sole decision maker in dismissal matters – ideally, someone who is not involved in any previous process or the facts of a matter which may lead to the dismissal of an employee. 

The decision maker should ideally not be familiar with or involved in any workplace rights that the employee may have, or have exercised. Their decision regarding any disciplinary action, including dismissal, should be based objectively on the employee’s performance, conduct or behaviour. Accordingly the decision maker’s lack of knowledge about any workplace rights in the matter, would be advantageous. 

This decision is a reminder of the consequences of inadequate preparation and inconsistent decision-making in adverse action cases. 

The matter is set to proceed to a penalty hearing for the contravention of the relevant legislations, with legal costs reserved.

Aaron Goonrey is a Partner and leads the Australian and APAC Employment & Rewards practice at Pinsent Masons and Yuliya Chis is an Associate at Pinsent Masons. The advice in this article is general in nature and does not constitute formal legal advice.

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If an employee complained about being secretly recorded by their superior during a performance meeting, you would discipline the director, right? It’s clear they’ve breached company rules. But what if that director claimed the employee in question had been bullying them, leading the director to use the recording as proof? What would you do?

A Northern Territory council recently faced a similar scenario.

In response to an Australian Services Union (ASU) adverse action claim seeking the reinstatement of a former employee (or $400,000 compensation for lost wages), the council director who the employee reported to, and to whom the claim has been made against, is now pointing the finger at HR to bear the brunt. 

After the employee complained about the director allegedly secretly recording sensitive meetings, including a performance review, and possibly sharing them, he was dismissed only a few weeks later. He claims this was due to his complaint about the recordings, but the director said the employee’s dismissal stemmed from a history of “upwards bullying”.

The director, who claims he was the victim of said bullying, told the Federal Circuit Court that the employee was a “cancerous thorn in the side of council” and that he has disrupted team cohesion, been insubordinate and made personal attacks on the director’s character and bullied him.

The council informed the ASU mid-last year that the director had been told to refrain from secretly recording sensitive meetings in the future and, it would seem, had hoped this would be the end of the discussion. The employee and the ASU felt differently. 

Secret recordings and alleged bullying come to a head

Proof of the alleged bullying can be found in the Fair Work Commission’s records, which show that the director applied for an anti-bullying order against the employee, in which he accused the employee of making “vexatious comments” and conspiring with other staff members (the details of this are unknown).

As a result, the reporting lines were temporarily changed to accomodate the director. However, when this order was subsequently withdrawn, the council restored the reporting line between the employee and director and tensions continued to bubble.

Attempting to smooth over any discord that arose from the alleged secret recording and bullying, the council arranged for mediation between the employee, who was invited to bring a support person, and the director, who had the corporate manager who is responsible for HR (hereby referred to as the HR representative) designated as his support person.

The ASU, however, said the employee chose not to attend mediation because of the “power imbalance” that would arise if the director had the HR representative as their support person, and because the solicitor mediating the dispute was presumably selected and instructed by the council.

“It wouldn’t be appropriate for an HR representative to sit silently in this sort of meeting… They would need to facilitate, and that’s not what the definition of a support person is.” – Pooja Kapur, employment lawyer, Owen Hodge Lawyers

As a result of the employee not partaking in the mediation, the director said he had “no choice” but to issue a dismissal. Other grounds for dismissal mentioned in the letter included not keeping his car clean, smoking in front of the building and permitting another employee to bring her child to work.

Feeling this was unreasonable, the employee and ASU hit back with the adverse action claim.

The director is now trying to wipe his hand’s clean of the situation, saying he delegated his authority to dismiss employees to the HR representative five weeks prior to the dismissal in question. Given the director’s claim that the HR representative made the decision for dismissal, he says she, and the council, should bear the penalty. 

Who is in the wrong here?

According to employment lawyer Pooja Kapur from Owen Hodge Lawyers, the employee had every right to complain about the director secretly recording meetings, regardless of the state in which the conduct occurred (it is not illegal for an employee to record a conversation in the Northern Territory, provided it is for their own legal protection).

“It has to be made known to that person that they’re being recorded and that consent needs to be obtained in order to proceed with the recording and use it in future,” says Kapur. “It doesn’t matter which state you’re in; consent is key.”

Given the seriousness of the privacy breach, Kapur says the council’s response (i.e., telling the director not to secretly record conversations again) was inadequate. Essentially, he got a slap on the wrist and the employee got the boot.

“[Secretly recording conversations] is a big breach of confidentiality, and it deters employees from being able to communicate openly with their employers or HR managers. If someone has an issue in the workplace, it’s never going to get resolved if people are too scared to speak up,” says Kapur.

She believes disciplinary action taken against the director – whether a formal warning, a one-week suspension, or another penalty entirely – would have “sent a message to the manager that his complaints are being heard and accepted”, while deterring the director or other employees from repeating such behaviour.

“If the [secret recording issue] had been handled a bit more strongly, that might have prevented the situation from worsening… but I don’t think it would have avoided it altogether. I think that it was inevitable for this to escalate because no due process was followed,” says Kapur.

Secret recording complaint dealt with ‘on a whim’

There was “no proper investigation” into the employee and director’s behaviour, says Kapur, and formal processes weren’t followed when attempting to address the tensions brewing.

“When the employee raised his complaint [about being recorded], the HR [representative] should have noted it down in detail, produced a summary of the complaints, and then presented them to the director… Then an analysis or investigation should have been done into the complaint, and the response,” says Kapur.

“If they find that neither party is at fault, they should hold a mediation between the two … but the mediator should be an independent person.”

A lack of clarity around each stakeholder’s involvement provided fertile ground for problems to surface.

“What is the role of the CEO or the director, what’s the role of the HR representative in handling these processes? There needs to be  distinction so it’s not just decided on a case-by-case basis, or  on a whim.”

Kapur says there should be a set policy and procedure followed every time, with the same person conducting an investigation.

“That way there’s less room for bias.”

HR as a support person

While it might be commonplace – and indeed necessary – for an HR representative to attend a mediation, an HR representative’s participation as the director’s support person is not appropriate.

“A support person is there to provide moral support. They really need to be a silent party, and it wouldn’t be appropriate for an HR representative to sit silently in this sort of meeting,” says Kapur. “They would need to facilitate, and that’s not what the definition of a support person is.”

In the NT council case, a fair mediation would have required the union and council to jointly instruct a third party who is removed from the investigation itself, says Kapur.

Practically, this arrangement would involve communication via email with all three parties copied in, thereby negating the need for one-on-one instruction.

“This would provide the employee with the reassurance that the person really is objective.”

The lack of impartiality in the mediation process, and the employee’s refusal to participate was “not grounds for dismissal”, says Kapur.

While it’s unclear what else could have been going on behind closed doors between the director and employee (regarding the bullying claims), on the face of it, it appears as if the director has let his personal feelings interfere with a fair and just workplace process.

“You are victimising the employee for exercising his workplace rights.”

Should HR take the blame?

In short, no.

This is because an organisation is generally held liable, rather than an individual, says Kapur.

“In any case, HR departments don’t ordinarily hold the authority to terminate employees. The case mentions that the union alleges it was the director who handed the letter to the employee,” she says.

“Irrespective of who handed it to him, the letter should be reviewed to see who signed off on it. I would be surprised if it was a HR representative.”

In addition, grounds for termination mentioned in the letter, including ‘failing to keep his car clean’ and ‘smoking in front of council offices’, are more likely to have been identified by the employee’s direct report than the HR representative, says Kapur.

“I would therefore say that it is unreasonable for the director to shift the blame onto HR, as they both play separate roles and have different responsibilities.”

At the time of publishing, the case had been adjourned as it due in front of the courts again on 28 July.

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