Businessman fined for sacking employee who contacted Fair Work: The dangers of adverse action

Businesses are being warned about the pitfalls of adverse action after the director of Sydney newspaper publisher F.L. Press was fined $27,500 for sacking a journalist who reached out to the Fair Work Ombudsman (FWO) for assistance.

The Federal Circuit Court found Serbian news publication Novosti engaged in adverse action by dismissing the worker, describing the conduct of the company’s director as “bullying and intimidatory behaviour”.

The journalist, who worked at Novosti between 2003 and 2011, sought FWO help after being told his full-time employment would be converted to part-time.

After informing his employer he was entitled to redundancy for the change in lieu of notice of termination, his employer allegedly threatened to dismiss him entirely if he didn’t complete his own job, as well as that of a co-worker on leave, within his usual hours.

Eventually, Novosti sacked the worker in January 2011 for a number of reasons, including because he had sought assistance from the FWO.

“It is important that employees be able to report matters to the Ombudsman without fear of the sort of threats of reprisal,” Judge Cameron said in his ruling.

Fair Work Ombudsman Sandra Parker said the ruling should be a warning to businesses that the intimidation of workers trying to exercise their rights won’t be tolerated.

The dangers of adverse action

Athena Koelmeyer, managing director of Workplace Law, says employers need to be careful not to engage in adverse action under the Fair Work Act, which covers anything that might cause an employee injury in their employment.

“You can’t treat employees adversely once they’ve exercised a workplace right,” Koelmeyer tells SmartCompany.

Employees have a right to complain about their workplace circumstances to the FWO, health and safety regulators and registered unions.

Firing a worker for engaging with these bodies is not just a potential unfair dismissal case, Koelmeyer explains, but a potentially expensive damages claim.

While compensation for unfair dismissal is capped at 26 weeks worth of pay, adverse action is not capped and takes into account the damage done to an employees future career prospects.

Reducing or changing hours, as well as other variations of employment, can also be considered as an adverse action in response to a complaint.

Agreements a two-way street

Koelmeyer adds that employers can’t unilaterally vary terms of employment.

“SMEs are under pressure and if all of a sudden they need people to do X plus Y instead of just X they expect they can just ask or require them to do that,” she says.

“In reality, you can’t, employment contracts are a two-way deal, employees have a right to the benefit of that contract.”

F.L. Press was liquidated in 2016 and is now deregistered after being ordered to pay $127,904 for worker underpayment in 2015. The director was not involved in the underpayment.

SmartCompany contacted the director for comment but did not receive a response prior to publication.

*This article was updated at 3.00 on December 3.

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