NSW Cause of adverse action

[Taco Cat]

Assume for the purposes of this question that making a complaint to the police is definitely a workplace right in this case.

1. Employee makes a legitimate complaint to the police about her wantonly nefarious employer.
2. Employee informs employer the complaint to the police has been made.
3. Employer decides to take adverse action against the employee for making the police complaint but does not act at this point.
4. Employer requests a copy of the police complaint.
5. Due to police disorganisation, the processing of the complaint is delayed and a copy of the complaint cannot be given to the employee.
6. The employer accuses the employee of making up the police complaint to unfairly impugn a colleague.
7. The employer takes adverse action against the employee.
8. The police finally send a copy of the complaint to the employee.
9. The employee makes a general protections adverse action claim in court.
9. The employee claims the the adverse action was taken because she made a complaint to the police.
10. The employer claims the adverse action was taken because the employer genuinely believed the employee had made up the police complaint, which was serious misconduct.
11. The Judge accepts that the employer was motivated by their stated reason, that the employer believed the complaint was false.

My question is, who wins?

There are two reasons I can see why the judge might side with the employee:
1. Because the reason given by the employer is still proscribed because the employee didn't lie about the police complaint. Perhaps the judge will refer to a failure of due process by the employer. But does that argument really work in an adverse action claim?
2. The reason for the adverse action is still because the employee made the police complaint. That is, the employer's (mistaken) belief and action only occurred because the employee made the police complaint. The police complaint was still THE reason, or part of the reason.

The reason why I can see the judge siding with the employer is because believing the complaint was false is the very antithesis of the reason claimed by the employee. The employee's argument is quite simply wrong and must therefore lose.

Is there anything the employee can do in this case to ensure she wins? What argument should be made? Can Bendigo versus Barclay be applied to help the employee or does it only hinder her?

Thanks.

 

[Rod]

Are you an employee representative or student?

The first hurdle is in s.341(1)(c)(ii) and whether a workplace right exists. In the circumstances you described the complaint has to be in relation to her employment.

The details of the police complaint will determine the answer. Look at Shea v TRUenergy Services Pty Ltd to explore this further.

Bendigo Tafe v Barclay would tend to hinder the employee, but much will depend on the nature of the police complaint and whether it relates to employment.

 

[Taco Cat]

Thanks for the reply.
It’s definitely a workplace right. And it’s not a hypothetical case.
If its easier, replace police complaint, with work, health and safety report.

Employee says adverse action was taken because they submitted a WHS report. Employer says adverse action was taken because they thought the employee was lying about making a WHS report.

No matter how moronic and motivated by malice the employer maybe, no matter how much the judge believes a reasonable employer acting fairly should’ve followed due process and not acted until they were certain the WHS report did not in fact exist, if the judge accepts that the employer is telling the truth, that the employer thought the WHS report did not exist, who wins?

Look at it this way. It’s very tempting for the employee to argue that the employer is lying about their motivation to commit the adverse action. That the real motivation for the adverse action is because they wrote the WHS report and claiming it was because they thought the report did not exist was just a stupid excuse. This gives the judge a reason to side with the employee, an excuse to do justice. But, there is documentary evidence that the employer thought the employee was lying about making the report. Not evidence the employee WAS lying, evidence the employer THOUGHT she was lying. It was a completely absurd allegation to make, outlandish, typical of bullying behaviour. But on the balance of probabilities, there is real evidence that that was their motivation. Stupid a motivation as it was.

So what is the employee’s argument to the court? Adverse actions claims are based on “I did this, so the employer did this”. Does the employee go with “I made a WHS complaint so the employer did xyz” and just hope to hell that the judge accepts the WHS complaint CAUSED the adverse action to occur, that if she had not made the WHS complaint, the adverse action couldn’t have happened? But when the defence lawyers say “our client is a moron, and being a moron he was most definitely motivated by an utterly absurd belief that the report did not exist. So the applicant’s case must fail”, what does the judge decide?

 

[Rod]

Is this person still within the 21 day window to lodge a claim?