A recent Federal Court case has shed light on the complexities of dismissal decisions involving multiple stakeholders.

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.