Case reminds employers to build proper defence against dismissal claims
The Federal Circuit and Family Court of Australia (FCFCOA) recently dealt with an employee’s claim that she was dismissed because she “complained” about her work, including working for “unreasonable” hours.
Meanwhile, the employer said that the employee had “exaggerated” her complaints, and she was dismissed because she did not possess “desired qualities” for the business.
The employer is in the business of supplying, principally to retailers, clothing apparel under several well-recognised brands.
It is divided into business units according to the brand of apparel that it supplies to retailers. It has internal divisions that service these businesses, including the financial division.
In June 2019, the employee started to work as a wholesale commercial analyst in the financial division. She was required to complete a probationary period of six months. During this period, either party could terminate her employment.
Around November, the employer wrote to the employee, informing her that during the probationary period, her “suitability for the role of commercial analyst, and performance and progress in the role, was assessed”; and it “has therefore decided to terminate” her employment.
The letter stated the employer’s decision “has been made on the basis that various aspects of [her] performance and suitability for the role are unsatisfactory.”
The employee did not accept the basis of her termination, and said she was fired not “because of any inadequate performance on her part.”
She said the employer dismissed her “because she exercised a workplace right” by “making three complaints in relation to her employment.”
According to records, the first is a complaint that she made in an email in September, addressed to the employer’s commercial manager about the conduct of a co-worker.
Additionally, the second and third complaints relate to what the employee claimed were “unreasonable overtime hours the employer was requiring her to perform, in excess of 38 hours a week.”
She alleged that there were days that “she did not take a lunch break; worked extra hours on weekdays; and even worked on weekends.”
The employee said that she “made those complaints by sending emails” to senior management, adding that “by dismissing her from her employment, the employer took adverse action against her,” which violated the Fair Work Act.
On the other hand, the employer said the employee “conducted herself in a defensive, argumentative and combative manner” and that she was “prone to exaggeration, leading to some implausible conclusions.”
In its decision, the court asked the employer to produce evidence of the employee’s performance and suitability for the role and why she was “unsatisfactory,” however, the employer could not produce any proof.
The court then found that the “performance evidence was not reasonably capable of supporting the conclusion that she did not possess the desired qualities” to continue in her role.
It also asked the CEO that was named in the documents about how the management concluded that her employment should be terminated, but it likewise found that it could not provide the reasons why it had “approved the decision to terminate her employment, or about the information on which [the CEO] relied on.”
Since the employer could not substantiate its defence, the court said that the employee was terminated because she made complaints about her work.
Thus, the court declared that the employee’s claim was successful against the employer. It then ordered the latter to pay $24,200.98.
