By Catherine Ngo Content writer, presenter and podcaster
An employer was fined $25,000 for taking adverse action against an employee, with the court declaring the violation as "serious." The case centred around a learning and development manager who alleged he was unfairly terminated by his employer, after exercising his "workplace rights" by raising workplace concerns and complaints about his line manager.
In the decision, Justice Darryl Rangiah of the Federal Court accepted that the line manager consistently viewed the L&D manager's actions in a negative light, particularly since he made complaints about her denying him procedural fairness during a previous workplace investigation.
Justice Rangiah highlighted the lack of objectivity and plausibility in the line manager's findings when she subsequently dismissed the L&D Manager on allegations of bullying and victimisation of his subordinate. He stated that the findings were not genuine reasons for the termination.
Consequently, the employer failed to meet the burden of proof in its defence against the L&D manager's adverse action claim. Justice Rangiah upheld the claim and awarded the L&D Manager $130,000 in compensation for economic and non-economic losses.
In the proceedings, to determine the appropriate pecuniary penalty, Justice Rangiah noted Serco faced a maximum penalty of $63k.
"For a contravention of s 340(1), the maximum penalty is 300 penalty units for a body corporate: see s 539(2) (item 11) and s 546(2) of the FWA. At the time of the contravention (6 May 2022), one penalty unit was equal to $210: s 4AA of the Crimes Act 1914 (Cth). Accordingly, the maximum penalty is $63,000."
"It is a serious matter to terminate the employment of any employee, let alone an employee of some 17 years standing, for an unlawful reason."
Justice Rangiah accepted the employer's assertion that the contravention was not part of a larger strategy or culture of non-compliance but rather an individual decision by the operations director. However, he disagreed with the employer's argument that specific deterrence was unnecessary or limited.
Justice Rangiah emphasised the significance of specific deterrence as a reminder of the repercussions of admitted contraventions, even in instances where systems have been implemented to prevent future violations. However, he noted the absence of evidence indicating that the employer had established such systems, training, or provided warnings.
The employer also argued it had a culture in which staff were aware that they "can and will be dismissed" for taking unlawful adverse action, but Justice Rangiah did not accept it had demonstrated this.
The L&D Manager's complaint, which led to his dismissal, was not just about procedural fairness but also extended to bias and the outcome of the investigation.
Justice Rangiah acknowledged that the employer had applied for an extension of time to seek leave to appeal against the July ruling.
The judge emphasised that the adverse action was taken solely because the L&D manager had made a complaint. As a result, Justice Rangiah determined that the employer's contravention was an isolated incident. The judge ordered that the $25k pecuniary penalty be paid to the employee within 28 days after the determination of any appeal, subject to any order of the Full Court.
Read the judgement here: Parsons v Serco Citizen Services Pty Limited (No 2) [2024] FCA 1103 (27 September 2024)
