Under the general protections provisions of the Fair Work Act 2009 (Cth), it is unlawful to take adverse action against an individual because they raise a workplace complaint or query.

An employee bringing a general protections claim must prove the existence of objective facts that are said to provide a basis for the alleged adverse action. Then the onus shifts to the employer to prove it did not take the adverse action for a prohibited reason. This will require the decision-maker (i.e. the person who decided to take the adverse action) to provide evidence for the reason the action was taken and establish that it was not for a prohibited reason.

The mind of the decision-maker

A court will need to ‘look into the mind of the decision-maker’ to determine whether the adverse action was taken for the prohibited reason or not.

Where there is only one person who made the relevant decision, this process is relatively simple. It involves an inquiry in the reasoning process leading to that person’s decision to take the adverse action.

It becomes more complex if several individuals are involved, with varying degrees of knowledge about the relevant issues, and the decision-making process can be described as collaborative.

The court must determine the actual reason or reasons that motivated the decision-maker, and should not inquire whether some prohibited reason had subconsciously influenced the decision-maker.

If the actual decision-maker relies on information given to them that turns out to be false, then the mind of the decision-maker will not be tainted by the improper purpose of the other person.

It is important to distinguish between context and the substantive and operative factors leading to the particular decision being made. The court will assess the reliability or otherwise of the reasons proffered for the relevant decision in the light of all the available evidence. The fact that contextual influences might bear in some way upon those reasons is not enough.

Case study: Lintvelt v QGC Pty Ltd (2022)

The employer’s Deputy Operations Manager and Employment Relations/Industrial Manager decided to dismiss the employee, a gas plant operator, during his probationary period. The reasons given for his dismissal were:

• he was unsuitable for the position;
• he displayed a poor attitude to his work and other employees; and
• he breached applicable workplace protocols.

Employee claim

The employee argued the real reason for his dismissal was because he exercised a workplace right to point out the inadequacies of the employer’s attitude to industrial safety at the plant to both his colleagues and immediate superiors. This encouraged them to provide false or exaggerated information about his performance to their superiors, which was calculated and intended by them to bring about the employee’s dismissal.

Who was the decision-maker?

The Deputy Operations Manager signed the dismissal letter and was the ultimate decision-maker. The dismissal letter was drafted by the human resources department, which also approved the decision to dismiss, after ensuring the decision would not expose the company to legal exposure. The dismissal was approved by the Employment Relations/Industrial Manager. The manager relied on information given by a human resources officer reporting to her. That officer had never met the employee until the dismissal discussion, and in turn relied the employee’s supervisor.

The Court’s findings

The Court had to make findings about the states of mind of various individuals who constituted the directing mind and will of the corporate body making the decision to dismiss. The employee argued the operative decision-maker was his supervisor, and that the managers merely approved or ‘rubber-stamped’ the decision of the supervisor.

The Court found the supervisor did not appreciate way the employee raised safety concerns. This influenced the information he provided to his superiors that the employee had a poor attitude to working in the team, was oppositional and unwilling to be directed, and disrespectful of him and the company’s corporate ethos.

The Court noted the letter of dismissal was poorly worded and the employment termination process was not handled well.

The supervisor may have found the employee’s frequent complaints about occupational health and safety irritating and gratuitous. However, the Court concluded the employee’s views about occupational health and safety issues were not the substantive and operative reason or reasons for the dismissal. The supervisor believed the employee did not ‘fit in’, was inimical to the values of the work team, would not take direction and was difficult to work with. He was not dismissed because he raised health and safety issues in the workplace or for any other protected attribute.