Imagine receiving a $25,000 General Protections claim after you terminate a casual employee after 10 days employment who was clearly not doing his job AND being dragged to the Federal Court by their solicitor.

It happened to a small employer client of Hunter ER. The security guard was terminated because he was not doing his job staying at his designated point at the supermarket entrance/exit and was wandering around the larger shopping centre. The employee’s dodgy solicitor lodged a $25,000 claim for adverse action against the small employer.

The basis of the claim was that the employee had been terminated after he made a complaint about his pay. The new employee had not received their first pay and called the pay office to complain. The pay office checked the employee’s employment application form and found the employee had put the incorrect bank account number on the form. They amended the account details and paid him the same day with an extra pay run.

At first instance the Fair Work Commission allowed this claim to proceed to hearing in the Federal Court accepting that the casual employee had made a complaint before his termination had taken place and that was sufficient to activate the Adverse Action part of the General Protections in the Fair Work Act.

One trigger for Adverse Action is where an employee makes a complaint, and the employer takes some form of negative action (could be changing their work hours) at some point after the complaint. In this matter the complaint was not receiving his wages. 

For a more detailed explanation of Adverse Action under the Fair Work Act – see Part 1 and Part 2.

The matter proceeded through the early stages of the Federal Court process. We played ‘hard ball’ but reluctantly settled for $1500 to avoid employing Counsel at considerable cost in a formal Federal Court hearing. The ex-employee’s solicitor appeared to be a friend without cost to the employee. 

Unfortunately, adverse action applications are too common and are often used by dodgy solicitors who make exorbitant claims against employers to force an out of court cash settlement as a commercial decision to avoid the interruption and cost of defending a hearing which can be substantial.

This case shows how easy it is for employers to get caught up in such a claim.

So, what can an employer do in such a case?

In any termination it should be accepted by employers that their decision could be challenged. Therefore, a legal evidence trail must be constructed in the lead up to the termination.

Given the cost of penalties/reinstatement and costs involved in preparing a defence employers must seek professional guidance. This may not prevent the employee lodging a claim but allows for a much stronger defence where we can tell the employee ‘see you in court’.

Hunter Employee Relations can assist employers to minimise their exposure and to respond to a General Protections claims.

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Kind Regards
Michael Schmidt
M 0438 129 728
[email protected]
www.hunteremployeerelations.com.au

Industrial Relations - Employment Law - Workplace Performance