Adverse Action - comprehensive performance management saves employer

One Minute Summary

Shortly after being employed the employee started displaying performance issues. In response to these issues being brought to his attention he made a bullying complaint against his employer.
The performance issues continued until he was terminated just before his probation finished following a Show Cause process.
After being terminated he lodged a General Protections Adverse Action claim against his employer stating that he was terminated due to making the bullying claim.
The matter was not settled (by monetary compensation) in the Fair Work Commission and proceeded to hearing in the Federal Court.
The Court dismissed his claim stating ‘the complaint appears to be an attempt by the Applicant to muddy the waters and establish a basis for an unfair dismissal claim’.
General Protections applications can be made by employees from day one of employment. Probation periods are not a barrier.

Mr Treffry was employed as a Talent Acquisition Partner with BlueScope Steel on 3 June 2024. On 30 September 2024 he lodged a bullying complaint claiming he faced "unfair standards, repeated baseless criticism, and a refusal to act in good faith." Two days before the end of his 6 month probation he as terminated on 22 November 2024. He lodged a General Protections – Adverse Action claim seeking $50,000 in compensation stating that as the dismissal occurred a short time after his bullying complaint it was clear evidence that the termination was due to his complaint.

In these types of Adverse Action claims the employee makes an assertion that the employer acted adversely (i.e. terminated their employment) due to the complaint raised by the employee. The Fair Work Act presumes the reason for the termination is as asserted by the employee unless the employer can disprove the employee’s assertion. In this case the onus of proof was on the employer to show that the termination did not take place due to the bullying complaint. (This is the opposite of an unfair dismissal claim where the employee must prove they were unfairly dismissed.)

Where there are multiple reasons for a termination, if only one of those reasons relates to the employee’s complaint, this is sufficient to allow the adverse action claim against the employer.

Mr Treffry asserted that complaints raised by HR regarding his lack of attention to detail, tension between himself and HR, and a significant workload all constituted bullying. On 30 September he therefore lodged a formal bullying complaint alleging he was subjected to unfair standards, repeated baseless criticism and a refusal to act in good faith by HR. BlueScope referred the complaint to an independent investigator. In support of his bullying complaint, his Doctor certified him as unfit for work (a ‘nervous breakdown’) from 30 September to 6 October 2024.

The investigation outcome was provided to Mr Treffry on 30 October. It stated that the bullying concerns raised by the Mr Treffry were performance-based and did not constitute bullying. Mr Treffry did not accept the investigator as being independent.

With ongoing performance issues BlueScope issued Mr Treffry with a Show Cause letter on 14 November 2024 requiring him to explain why his employment should not be terminated. Following due consideration of his response, Mr Treffry was terminated on 22 November 2024. This occurred within his 6-month probationary period.

Mr Treffry’s General Protections Adverse Action application initially proceeded to the Fair Work Commission. As it was not resolved (by monetary settlement) it proceeded to the Federal Circuit and Family Court of Australia (the ‘Federal Court’).

Ms Mitchell, Mr Treffry’s former direct supervisor, provided a comprehensive defence on behalf of Bluescope. It became obvious in the Decision that in the lead up to the termination that Ms Mitchell had a clear paper trail of evidence in support of her decision to terminate. Her testimony included the following:

Mr Treffry’s CV claimed he had extensive recruitment experience. This was not exhibited by him.
On the second or third day of employment Mr Treffry had told Ms Mitchell ‘I have a really bad memory”.
At times Mr Treffry appeared reluctant to use his computer and that she was required to show him how to perform particular tasks which someone with experience would know.
Ms Mitchell had to explain to Mr Treffry the expectations of his role as a Talent Partner including the requirements of the service level agreement with HR.
After various performance indicators had been missed, such as the time taken to action an important recruitment, Ms Mitchell established weekly meetings with Mr Treffry to discuss any issues he had and to support his learning, development and capacity.
Ms Mitchell received a range of ongoing concerns from HR staff members as to Mr Treffry’s performance. When she raised them with Mr Treffry, he was very dismissive of the concerns.
Ms Mitchell had received a message from a Bluescope HR Manager requesting Mr Treffry be remove from an urgent recruitment because he was too slow.

Ms Mitchell told the Court that on 24 September 2024 she had formed the opinion that Mr Treffry’s employment should not continue beyond his probationary period. (This preceded Mr Treffry's bullying complaint which was received on 30 September 2024 and formed the basis of his complaint under the Adverse Action application.)

Therefore, on 22 November 2024 Ms Mitchell provided the Applicant with a letter of termination. Ms Mitchell stated that she had reached that conclusion independently, based on Mr Treffry’s performance, and that the decision to terminate was her decision alone.

In his Judgement Justice Humphreys stated:

‘The Court is not satisfied, based on all of the evidence, that the (bullying) complaint constituted a substantial and operative reason for the termination of his employment. If anything, the complaint appears to be an attempt by the Applicant to muddy the waters and establish a basis for an unfair dismissal claim.’

‘When issues were raised with him, the Applicant unfairly sought to deflect responsibility onto other employees and individuals. The Court is satisfied that the Applicant was neither willing nor able to accept responsibility for his underperformance.’

In relation to BlueScope’s evidence the Judge stated:

‘Ms Mitchell impressed the Court as a considered and credible witness. Her evidence was detailed and persuasive regarding the performance concerns she held about the Applicant from shortly after the commencement of his employment.’

‘The Court accepts her evidence that she determined the Applicant’s employment should be terminated during his probation period before the bullying complaint was lodged.’

Justice Humphreys dismissed Mr Treffry’s application and invited the Respondent to make an application for costs within 7 days.

Commentary

Reading the Judgement it became clear the preparation by Ms Mitchell and her personal credibility were crucial in the employer defending this application. She had undertaken the correct steps with Mr Treffry and had kept records of all interactions. One area which she did not have actual evidence was the date she had decided to terminate – the decision was made before he lodged the bullying complaint. However, given the comprehensive nature of her other evidence the Court accepted that she had made that decision before the bullying complaint.

What became quite apparent during this case is that the Applicant would have been well aware of the comprehensive evidence stacked against him well before the actual Federal Court hearings commenced. In such proceedings witness statements are lodged well in advance of formal proceedings. Regardless he continued with his application with no real hope of success. I would seriously question his legal advice. This could explain the Judge’s invitation to the employer to make an application for costs – it could well be favourably received.

The problem employers face is these types of cases is that they cannot escape this process and have the choice of settling for (often exorbitant) compensation claims by former employees or proceeding to full hearing.

The more prepared an employer is in such circumstances the better their chance of staring down a compensation claim or defending themselves in proceedings.

Employers should note that General Protections actions are available from day one of employment with probationary periods having no real value.

The hearing took place on 26 May 2026 and a decision was issued on 12 June 2026 – which is very quick for a decision. This is approximately a year and half after the termination. This indicates the current workload of the Federal Court with many workplace relations matters pending.

If you require assistance with the lead up to a termination please contact Hunter Employee Relations.

Kind Regards

Michael Schmidt

M 0438 129 728

[email protected]

www.hunteremployeerelations.com.au