One Minute Summary

• The employee, a Food Trainer, undertook food audits at his employer’s services station food outlets. On one occasion there was an altercation where he was verbally abused.
• While he initially seemed ok when talking to his manager after the incident the altercation very quickly led him to suffer extreme stress, anxiety etc. He ceased work (and never returned) and filed a workers compensation claim which was rejected.
• A number of months later he was medically terminated due to his inability to fulfill the inherent requirements of the job.
• He filed a Fair Work Act General Protections Adverse Action claim on multiple grounds including that the termination occurred because he made a ‘complaint’ to his manager immediately after the incident and because he exercised a workplace right to lodge a workers compensation claim.
• The Federal Circuit and Family Court of Australia (the Federal Court) rejected his application and accepted the employer’s reason for termination.

Mr Hilber worked for APCO Services Stations which are based in northern Victoria and into southern NSW. His role was a Corporate Food Trainer. In early December he was conducting fresh food audits at a number of services stations. When he visited the Wodonga service station with a colleague on 11 December 2024, they were met by an angry franchisee who swore at them concerning their food safety audit the day prior at his Wangaratta service station. He stated he closely followed the AUS/NZ food standards and did not want them to talk to his staff and the audit did not take place.  The franchisee stated he did not speak derogatory manner to the applicant.

The next day Mr Hilber spoke to his manager where he stated the interaction had been frustrating and that the franchisee’s behaviour had been ‘pretty ordinary’.  Mr Hilber did not lodge a complaint against the franchisee and did not state he needed time off due to the incident. (In his later General Protections application the above conversation with his manager became a ‘complaint’.)

That evening Mr Hilber emailed his manager stating, ‘due to current work circumstances he was suffering extreme stress and would take the following day off and visit a doctor’.  That day was the last day Mr Hilber attended work.

Thereafter Mr Hilber saw his GP who gave him time off for significant psychological distress and advised him to lodge a workers compensation claim.

The HR Manager, Ms Bates, followed up with Mr Hilber and sought a meeting with him shortly thereafter. Mr Hilber stated he was too unwell to meet with her a that time. She continued to follow-up with him on a regular basis by text message to check on his well-being.

Mr Hilber’s worker’s compensation claim was rejected on 8 January 2025.  On 16 January 2025, Mr Hilber attended an Independent Medical Examination. Extracts of the report include - ‘….he developed a mental health injury on 12 December 2024 as a result of allegedly being verbally abused and slandered by an APCO retailer. He developed mental health symptoms including very low and sad mood, disturbed sleep, nightmares, sporadic appetite, low energy and motivation levels, low concentration, anhedonia, and high levels of anxiety. These symptoms are congruent with a diagnosis of Major Depressive Disorder, current episode moderate. He also has features of traumatisation. He should see a psychologist. Increasing the dose of sertraline is a reasonable option. He does not have current work capacity. …’

Ms Bates again made contact attempting to line up a phone call with Mr Hilber which he declined stating his he had really bad anxiety talking on the phone. He agreed to continue contact by txt message.

In ongoing communication, she gently asked him about the possibility of returning to work in the future. He responded stating he did not feel he could come back and felt unsupported by the company. The text conversation then slowly moved along to moving on and resigning and there would be a notice payout to him that could be negotiated. He responded with ‘Please let me think about it as the figure in my mind may be high’.

Ms Bates raised the exit possibility again some weeks later asking Mr Hilber whether he had thought more about it. Mr Hilber responded he had a medical appointment coming up and was not in a good way.  No pressure was placed on Mr Hilber to resign.  

On 3 March 2025 Mr Hilber stated, ‘My doctor has said that I am in no shape or form to continue working at this stage I only had my first psychologist appointment today’.

On 14 March 2025 Ms Bates emailed a letter to Mr Hilber which was a show cause letter with the subject line “Proposed Termination of Employment”. The Show Cause was focussed on Mr Hilber’s inability to meet the inherent requirement of his job as a Food Trainer. The company requested information from Mr Hilber demonstrating he could meet the inherent requirements of the job. The letter stated if he did not provide a response a decision would be made on the information available at the time.

Ms Bates waited several weeks for a response from Mr Hilber. On not receiving a response she proceeded to terminate his employment. His appeal to receive workers compensation payments had not been decided so he was not on workers compensation at the time of the termination. 

As it turned out Mr Hilber’s solicitors responded on his behalf, but their email was caught in APCO’s spam filter.

After an Appeal Mr Hilber’s workers compensation claim was accepted on 7 August 2025.

Mr Hilber’s solicitors filed a General Protections claim focussed on a number of areas. To keep it simple I’ll focus on two - the complaint mentioned above and the fact Mr Hilber had exercised a workplace right by lodging a workers compensation claim – which is a ‘legal right’ for an employee. The application stated that because of these two actions by Mr Hilber, APCO terminated his employment and not because of his inability to work. 

During proceedings Mr Hilber stated his absence ‘…as a temporary, medically supported period of recovery following a serious workplace incident, with an expected return once fit. He says his February 2025 texts reflected acute illness, not abandonment of employment, and he presents APCO’s repeated references to an exit as pressure to resign.’

He also states APCO should have done more to assist him and to determine his ability to return to work.

The Federal Court then undertook a detailed examination of the legislative principles concerning the Fair Work General Protections (Adverse Action) provisions together with a number of important precedent Court decisions.

In General Protections (Adverse Action) cases the employee makes the assertion that the employer acted ‘adversely’ towards them for prohibited reasons. The employer must respond and carries the onus of disproving the employee’s claim.

‘….the determination of why an employer took adverse action against an employee requires an inquiry into the actual reason or reasons of the employer and is to be made in light of all the circumstances established in the proceeding.’

The Court looks to the decision maker to determine this question. In this case the decision maker was Ms Bates – the HR Manager.  She gave detailed evidence during the hearing. This included copies of all correspondence including all text messages with Mr Hilber

In respect to the complaint the Court determined the decision maker (Ms Bates) was not aware that Mr Hilber had made a ‘complaint’ on 12 December 2024. 

In respect to the termination taking place because Mr Hilber had exercised the workplace right to lodge a workers compensation claim the Court accepted the evidence of Ms Bates that: “I decided that APCO should proceed to terminate Simon 's employment on the basis that Simon would not be able to return to work for the foreseeable future . This was the sole reason for the decision to terminate Simon's employment. I was the decision maker…’

Additional evidence was provided by Ms Bates that she assisted Mr Hilber in completing the workers compensation claim. Strangely in this case Mr Hilber’s Counsel did not seek to test Ms Bate’s evidence on the reason for termination in cross examination.  

The Decision then stated - ‘It is difficult to accept that the workers’ compensation claim motivated Ms Bates on 28 March 2025 to dismiss the Applicant.  The claim made on 16 December 2024, had been known to Ms Bates for some time. If this had been a motivating factor for Ms Bates, she could have dismissed the Applicant sooner. She did not. …. The contemporaneous documents (namely the text messages between the Applicant and Ms Bates) do not evidence Ms Bates having had any concern about the Applicants workers’ compensation claim or his disability. On the contrary this Court goes so far as to observe that Ms Bates appeared concerned, and compassionate.’

In conclusion the Court stated: ‘this Court has a reasonable satisfaction… that the true reason or substantive and operative reason for the decision to dismiss Mr Hilber was Ms Bates’ reasonably held view that Mr Hilber could not meet the inherent requirements of the Corporate Food Trainer role.’   The Court dismissed Mr Hilber’s application.

Commentary

This General Protections Adverse Action claim was seriously going out on a limb. To avoid complexity I did not include all the avenues through which they sought to establish that the General Protections had been breached. Perhaps they were trying to get the Court to set new precedents? Mr Hilber engaged solicitors and a specialist employment and industrial law Barrister to run his case. This would have been quite costly in both preparation and several days of Court proceedings. 

APCO, and in particular, the HR Manager had a solid paper trail to disprove Mr Hilber’s claims. This information would have been known to his solicitors early in proceedings.

Therefore, why did they proceed to the Federal Court? We can only speculate that they were probably seeking a substantial compensation payment and were hoping APCO were willing to settle rather than proceed to full hearing. In General Protections claims (as in HREOC sexual harassment cases) Applicant’s lawyers like to force an employer into the federal court process, so the pressure to settle increases. Many employers, advised by their lawyers, fold at this stage and open the cheque book. 

An interesting learning here is that that Ms Bate sought to meet in person with Mr Hilber on a number of occasions. The evidence suggests this came from a caring perspective. Mr Hilber declined stating he preferred texting to communicate with her. Ultimately this provided APCO with a range of (employer friendly) messages that became evidence during the Court proceedings. If the meetings had been in person it may have ended up in a literal ‘he said – she said’ evidence situation. If you do have in person meetings in such situations, I would recommend you follow-up immediately with an email or text message.

Employers seeking assistance with medical or conduct performance terminations should contact Hunter Employee Relations at an early stage.

Kind Regards

Michael Schmidt

M 0438 129 728

[email protected]

www.hunteremployeerelations.com.au

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