General Protections dismissal - Multiple reasons for action - inquiry in relation to employment

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Jack_G

Well-Known Member
4 May 2020
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What can be a defense for this? Is there a defense for this?

"FAIR WORK ACT 2009 (NO. 28, 2009) - SECT 360
Multiple reasons for action

For the purposes of this Part, a person takes action for a particular reason if the reasons for the action include that reason."

One of the reasons for adverse action was - "Making an inquiry in relation to employment"

" (1) A person has a workplace right if the person: (c) is able to make a complaint or inquiry: (ii) if the person is an employee--in relation to his or her employment. "

Is the argument going to be that it wasn't an inquiry in relation to employment? Any other arguments?

Once all this is established, is there anything left to argue about :
1. was there an adverse action (dismissal)
2. was applicant an employee (yes)
3. was it an inquiry in relation to employment (question about work)
4. was the protected reason (inquiry) included in reasons for the action. (yes, it was)

S340 A person must not take adverse action against another person: (a) because the other person: (ii)exercised a workplace right
 

Poidah

Well-Known Member
9 November 2017
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Qld
Unlikely that you are able to mount a general protections claim since you had a FWC decision already. There is a 21 day limit from dismissal to submit a general protections claim.

3. was it an inquiry in relation to employment (question about work)
They may be quite confident of the evidence and proof that the protected reason was not relevant or insignificant in the decision making process though. That the action taken was inevitable, and the protected reason and workplace right would not and did not contribute to the dismissal.

that the reasons alleged by the employee were not a factor in the decision to take adverse action
what the real reasons were for taking the adverse action
that they would have taken the same action in relation to another employee in the same or similar circumstances who did not have a workplace right, or was excersing (or is not exercising) a workplace right
 

Jack_G

Well-Known Member
4 May 2020
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They may be quite confident of the evidence and proof that the protected reason was not relevant or insignificant in the decision making process though. That the action taken was inevitable, and the protected reason and workplace right would not and did not contribute to the dismissal.
Protected reason was one of four reasons for dismissal stated by the employer in the allegations letter against the employee. It states that these four reasons is why the employee should be dismissed.
Reasons for the action included that reason. That's a fact. Nothing to allege, it states so on the document.

How do you defend that?
 

Rod

Lawyer
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27 May 2014
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It is possible that a worker who gripes or asks about deficient gear, frameworks of work, or the direct or business execution of different representatives, might have the option to contend that the grumbling or request was comparable to their history assignment help business, which could then be the reason for a general assurances guarantee under the antagonistic activity arrangements of the Act.
*wonders if an MBA graduate stumbled onto this site by accident, or someone is AI testing

For OP - if you are still within the 21 day timeframe, then s 340 is your problem. The protected reason has to be substantial/operation reason. If any of the other reasons are sufficient in their own right to justify a dismissal then you'll have a hard time winning.
 

Poidah

Well-Known Member
9 November 2017
128
4
394
Qld
substantial/operation reason
Substantial/operation reason needs to be proven by the employee, just a list is not enough.
There needs to an indication of degree and severity of consideration which is an impossible bar to prove unfortunately. Especially if there is a series of reasons, then it is easier for the employer to prove that one of the 4 reasons is not a significant/operational reason. So the employee has to have some evidence of the decision making process, and that without the substantial and operative reason the dismissal would not have occurred. There are many ways for the employer to rebut the accusations - Rebuttable presumption as to reason or intent
 

Jack_G

Well-Known Member
4 May 2020
35
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Thanks all for your thoughts.
GP claim is in progress.

Inquiry made by the employee was construed as a failure to follow a lawful direction.
So that's an indication of degree and severity of consideration, isn't it?
Sounds pretty severe.

There's lots of evidence of the decision making process.

If any of the other reasons are sufficient in their own right to justify a dismissal then you'll have a hard time winning.
Rod where does your statement come from? Some case law?

In what way s340 is a problem?

and that without the substantial and operative reason the dismissal would not have occurred.
Poidah, that doesn't sound like what's written in the legislation. Is it a case law?

In this case s.360 says: If one of the reasons for dismissal includes an inquiry in relation to employment, then dismissal was taken for that reason.
The fact that the reason needs to be substantial/operative comes from the case law, is that right?
 

Jack_G

Well-Known Member
4 May 2020
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At para 15 http://www9.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FCA/2014/1124.html

"Section 360 of the Act contemplates that there might be multiple reasons for the taking of adverse action. In that event, it provides that, if one of the reasons is a proscribed reason, there will have been a contravention of the Act. Section 361 provides that, if an applicant alleges that his or her employer took adverse action for a proscribed reason, it will be presumed that the action was taken for that reason unless the employer proves otherwise. "


In this case employer states that he took action for a proscribed reason. Proving otherwise is futile.
 

Poidah

Well-Known Member
9 November 2017
128
4
394
Qld
Inquiry made by the employee was construed as a failure to follow a lawful direction.
As you mentioned that there are multiple reasons for the dismissal that are not a proscribed reason, so the inquiry will probably be viewed from the perspective of those other reasons.

doesn't sound like what's written in the legislation. Is it a case law?
Yes.

In assessing the evidence led to discharge the onus upon the employer under s 361(1), the reliability and weight of such evidence was to be balanced against evidence adduced by the employee and the overall facts and circumstances of each case; but it was the reasons of the decision-maker at the time the adverse action was taken which was the focus of the inquiry”
- General protections’ cases; reverse onus of proof
 

Jack_G

Well-Known Member
4 May 2020
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Thanks, for that.
In what way do you think s361 relates to s360?
I think s360 comes into play if allegation in s361 wasn't rebutted. I don't think s361 even comes into play in this case.

Could you tell me what case law you got this from please?
So the employee has to have some evidence of the decision making process, and that without the substantial and operative reason the dismissal would not have occurred.