The Federal Circuit Court recently dismissed an employment law adverse action claim, in which an employee alleged her dismissal was related to her workplace injuries and a bullying complaint.
- The employee was working as a microbiologist in a medical laboratory. She sustained injury to her neck, due to the posture in which it was necessary for her to carry out her duties. She went on sick leave from September 2013 – February 2014, returning on light duties. Her workers compensation claim was accepted.
- The employer made certain adjustments to the workplace to accommodate for her injury in accordance with its return-to-work obligations. The microbiologist argued that the adjustments made were inadequate to cater for her work-related disability.
- Shortly after she returned to work the microbiologist also made a bullying complaint against her supervisor for threatening and intimidating her. The complaint was investigated and found to be unsubstantiated. A similar complaint had been made in 2010 with the same outcome.
- In July 2014 the microbiologist’s employment was terminated due to the employer’s loss of trust and confidence in her, as well as her inability to perform the inherent requirements of the role given her difficulties working with her supervisor.
- The microbiologist then commenced proceedings for an adverse action claim, seeking reinstatement of her positon and alleging the employer had dismissed her:
- Because she had exercised her workplace law right to make a complaint or enquiry in relation to the bullying;
- To prevent her from exercising her workplace law right to make a complaint or enquiry in relation to the bullying;
- Because of her neck injury; and
- To prevent the implementation of reasonably practicable accommodations to her workspace in order to prevent further injury to her neck pursuant to the employer’s workplace law obligations under the Work Health and Safety Act.
- The employer alleged that the microbiologist’s bullying complaints, although she was free to make them, had not been made in good faith but rather by way of response to performance management and supervision.
The Court determined that:
- Whatever obligations the employer may have had under the Disability Discrimination Act 1992, the allegation that the employer breached its employment law obligations under s 351 of the Fair Work Act 2009 to avoid making ‘reasonable accommodation’ for the microbiologist’s disability was not substantiated;
- The employer had already made concerted efforts to comply with its return to work obligations;
- The employer’s argument that the microbiologist’s complaints were a reaction to performance management and supervision (rather than being legitimate complaints) provided the more likely explanation;
- The complaints evidenced not only a propensity to make allegations about the supervisor, but an inability to work with her and thus to function as a member of the laboratory team;
- If the alleged adverse action claim had been successful, the reinstatement sought would have been an inappropriate form of relief in the circumstances.
Tips for Employers
- In the event of an accepted work-related injury, review and ensure compliance with the employer’s return to work obligations;
- When implementing changes to the workplace following a work-related injury, ensure that the adjustments made are reasonably practicable. Speaking to an employment lawyer will assist in making an assessment of the precautions necessary to fulfil this requirement;
- Address and investigate complaints raised by employees, documenting the processes and outcomes;
- When considering the dismissal of an employee, be conscious of the obligations of an employer under discrimination and employment law and speak to an employment lawyer. In particular, be aware of the prohibited reasons for which an employer may not dismiss an employee;
- When providing reasons for an employee’s dismissal, address the ways in which the employee is unable to fulfil the inherent requirements of the role.
- Please call the leading employment lawyers in Parramatta, the Matthews FolbiggWorkplace Solutions team on 9635-7966 to speak with one of our employment lawyers.