Worker argues he was dismissed for 'exercising a workplace right'
The Fair Work Commission (FWC) recently dealt with a general protections dismissal dispute between a worker employed as an apprentice/trainee online content producer and their employer, a travel company.
The worker alleged that the employer terminated their employment because the worker exercised a workplace right to inquire about their entitlements to study pay. Despite attempts to resolve the dispute through a conference, the parties were unable to reach an agreement, prompting the matter to proceed to arbitration.
In this case, the central question revolved around whether the employer took adverse action against the worker by dismissing them and, if so, whether this action was taken because the worker exercised a workplace right.
The FWC had to determine whether the employer could prove that the dismissal was not related to the worker's inquiry about their study pay entitlements.
The worker started working for the employer on 5 September 2022 as a part-time apprentice/trainee working as an online content producer. The worker worked approximately 20 hours per week and earned an annual salary of around $20,000.
On 25 August 2023, the worker raised issues regarding their entitlement to paid study leave, believing they should have been receiving three hours of paid study leave per week since the beginning of their employment. The following day, the worker was informed that their position had been made redundant.
The employer maintained that the redundancy was due to the company's financial losses and the need to cut costs to survive. The employer stated that they had no plans to hire more marketing trainees or staff in the near future until the business improved.
The employer's proprietor emphasised that the worker's position was generating zero income for the company and that the worker was aware of this fact.
The FWC found that the worker's request to access their study leave entitlements constituted an exercise of a workplace right under section 341(1)(c) of the Fair Work Act 2009.
The worker's inquiry was reasonably understood by the employer as an expression of grievance that required attention and rectification.
It was not disputed that the termination of the worker's employment constituted adverse action under section 342(1) of the Fair Work Act 2009.
The FWC found that the employer took adverse action against the worker by terminating their employment on 25 September 2023.
The FWC applied the principles established in previous High Court decisions, such as Board of Bendigo Regional Institute of Technical and Further Education v Barclay and Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd, to determine the reason for the adverse action.
The focus was on the subjective reasons of the decision-maker, in this case, the employer's proprietor. The latter’s evidence under cross-examination was critical in determining the reason for the dismissal.
The conversations the employer had with the worker showed the following statements:
"We lost $250,000 at the time I gave you notice. A position like yours which is generating zero income for the company, it was for a hobby. You knew that, right?"
The FWC accepted the proprietor's evidence, finding it consistent and able to withstand scrutiny. The reason for the adverse action was not the prohibited reason alleged by the worker but was due to the employer's financial position.
The employer's chief operating officer also provided evidence supporting the proprietor's testimony:
"What it did do is it created a greater financial loss, which then – the timing clearly – I'm not going to dispute the timing, but the reality is that your position as content producer was in fact redundant months earlier, and you knew the financial situation of the company.”
After considering all the relevant facts, circumstances, and available inferences, the FWC concluded that the employer had discharged the onus of proving that no part of the adverse action was taken for the prohibited reason alleged by the worker.
The FWC emphasised the importance of examining the decision-maker's subjective reasons:
"I closely observed [the employer’s] evidence and formed the view that I could accept her evidence as to the reason why the adverse action was taken. Her evidence was consistent and withstood scrutiny. The reason for the adverse action was not the prohibited reason as alleged but was due to the financial position of the [business]."
The FWC also noted that the employer's attempts to rectify any outstanding study leave payments owed to the worker, both before and after the redundancy, supported the conclusion that the dismissal was not related to the worker's inquiry about their entitlements:
"Despite [the worker’s] claim that he was made redundant as a result of his inquiries into his study leave entitlements, the chain of correspondence discloses that [the employer] was, both before and after the redundancy, genuinely attempting to rectify any outstanding payments that [the worker] believed he was owed."
Furthermore, the FWC considered the fact that the worker was the only employee made redundant around 25 September 2023. However, the FWC acknowledged that all other employees were salespeople who generated income, while the worker was in the only division producing videos for YouTube that did not generate any income.
Ultimately, the FWC dismissed the worker's application, finding that the employer had proven that the dismissal was not related to the worker's exercise of a workplace right.
This decision highlights the importance of examining the specific facts and circumstances of each case and the decision-maker's subjective reasons when determining whether adverse action was taken for a prohibited reason under the Fair Work Act 2009.
