Employer liable for dismissal during probationary period under General Protections Provisions

In Pacheco-Hernandez v Duty Free Stores Gold Coast Pty Ltd [2018] FCCA 3734, the Federal Circuit Court ordered an employer to pay compensation to a store supervisor after she was dismissed during her probationary period. Relevantly, the employer refused to provide reasons to the employee for her dismissal, resulting in the Court determining that the dismissal occurred because she had made complaints about her employment.

Facts

About one month after she commenced employment, the store supervisor emailed her area manager stating she:

• felt overwhelmed with the business issues and the constant battles she had to deal with during every shift;
• was not seeing any improvement from management in addressing the issues;
• felt she was doing tasks that were not part of her job description;
• was facing significant disrespect from staff;
• was feeling ‘really overwhelmed’, and she was asking the question ‘is the right business for me to [be] in?’; and
• did not want to be called or emailed on her days off.

There were then a series of further incidents involving the store supervisor and the area manager and both had ongoing discussions with members of the employer’s senior management. The store supervisor made a number of similar further complaints via email and also complained about the rostering.

The employer’s HR Manager and the area manager had a number of conversations about the store supervisor and ultimately decided together to terminate her employment.

The store supervisor’s employment was terminated within the store supervisor’s probationary period.  The termination letter provided no reason for the dismissal. The store supervisor was also advised verbally by the manager that the employer was not legally obliged to give the store supervisor reasons for dismissal.

General protections application under the Fair Work Act

The employee commenced proceedings against the employer alleging the employer contravened section 340 of the Fair Work Act by dismissing her because she exercised a workplace right by making a complaint in relation to her employment.

Decision

Judge Manousaridis of the Federal Circuit Court found the employer had taken adverse action against the store supervisor by dismissing her and that the store supervisor had exercised a workplace right when she had made a number of complaints in relation to her employment via email.

The Court then went on to consider who had made the decision to dismiss the store supervisor. The employer’s submission that the human resource manager alone was the person who decided to dismiss the store supervisor was rejected by the Court because the evidence:

• demonstrated that the human resource manager had only given advice to the store manager about terminating the store supervisor’s employment; and
• was ambiguous in terms of what the human resource manager decided, or what she had authority to decide, in relation to the store supervisor’s dismissal.

Judge Manousaridis found that, at some point before the area manager spoke to the human resource manager, the area manager had determined that she wished to dismiss the store supervisor and sought permission from the human resource manager. His Honour also determined that the area manager was involved in the decision making process.

Substantive and operative factors for dismissal

Judge Manousaridis held that the employer could not prove that one of the substantive and operative factors in dismissing the store manager had not been because she had made a complaint in relation to her employment, because:

• the area manager was not called to give evidence and, as such, there was no evidence from one of the two relevant decision-makers;
• there was no substantiated reason provided for the area manager not being called to give evidence during the hearing and, as a result, an inference was drawn that she would have given unfavourable evidence;
• while the human resource manager did give evidence, she did not give direct evidence of the reason or reasons for which she agreed with the area manager that the store supervisor should be dismissed; and
• the human resource manager’s evidence was that she discussed with the area manager her concerns about the store supervisor but that the evidence was so brief and general that it did not exclude a number of the complaints that the store supervisor had made as being potentially substantive and operative factors in the decision to dismiss.

Judge Manousaridis rejected the employer’s argument that the store supervisor’s dismissal was because her behaviour did not fit within the team or did not exhibit respect for management. His Honour found that, given the nature and extent of the complaints the store supervisor made, and the vigour with which she expressed them, it was difficult not to conclude that the complaints constituted or at least formed a substantial part of the reasons for her dismissal.

The Court ordered the employer to pay the store supervisor eight weeks of lost wages, lost accrued annual leave on those eight weeks of wages and superannuation contributions.

Learnings

The decision highlights the importance of calling evidence from all decision makers.

The decision also demonstrates that dismissing an employee during their ‘probationary period’ will not prevent the employee from making a successful application concerning dismissal where that employee has exercised a workplace right.