05 Aug 2011

Managing employee performance: the new adverse action risk

by Joe Catanzariti

Employers should ensure that disciplinary action decisions are supported by a clear paper trail.

Once the realm of federal and state anti-discrimination legislation, the Fair Work Act 2009's adverse action provisions have expanded the avenues available to employees who feel they have been treated less favourably than others because of an unlawful reason by their employer. With disgruntled employees generally a result of disciplinary action, the number of adverse action cases is growing.

A recap on adverse action

Under the Fair Work Act 2009, an employer takes adverse action against an employee if it:

  • dismisses the employee;
  • injures the employee in his/her employment;
  • prejudicially alters the employee's position; or
  • discriminates between the employee and other employees.

Significantly, a reverse onus test applies in adverse action claims. This means that where an employee claims the employer took adverse action against the employee for an unlawful reason, the court must presume this to be the case unless the employer can prove otherwise.

The general protections provisions provide that in addition to it being unlawful for an employer to take adverse action against an employee who has a workplace right, an employer must also not take adverse action against an employee (or prospective employee) because of the employee’s:

  • race;
  • colour;
  • sex;
  • sexual orientation;
  • age;
  • physical or mental disability;
  • marital status;
  • family or carer’s responsibilities;
  • pregnancy;
  • religion;
  • political opinion;
  • national extraction or social origin.

This protection doesn't apply to action that is not unlawful under any applicable anti-discrimination law in force, is taken because of the inherent requirements of the employee's particular position, or it is covered by the religious institutions exception.

Bayford v MAXXIA Pty Ltd – the importance of transparent, sound and defensible decisions

The recent case of Bayford v MAXXIA Pty Ltd [2011] FMCA 202 highlights the broad application of the adverse action provisions, and the importance of employers ensuring that disciplinary action decisions are supported by a clear paper trail. This is especially the case where an employee suggests that he or she is being impacted by various issues such as family responsibilities or pregnancy.

Mr Bayford was employed in July 2007 as a call centre operator and initially worked a 9.00 am to 5.30 pm roster. In October 2008, Mr Bayford's son, Noah, was born. With Mr Bayford's agreement, his rostered hours were changed in early 2009 to 9.30 am to 6.00 pm.

In October 2009, Mr Bayford's supervisor and a HR consultant held a formal counselling session with Mr Bayford about Mr Bayford's poor performance and consistent lateness to work during September 2009. During the meeting, Mr Bayford explained that there was "not any big reason" for his lateness but "Noah's teething and I'm not getting much sleep". When asked about his poor performance, amongst his reasons, Mr Bayford indicated that he hoped "it's understood that I have a wife and kid at home and they need me".

Following this meeting, Mr Bayford was issued with a formal counselling letter noting poor performance and punctuality. Mr Bayford refused to sign the letter.

Despite an improvement in Mr Bayford's performance during October 2009, his tardiness continued and his performance again deteriorated. Accordingly, further formal meetings were held, resulting in Mr Bayford receiving two written warnings. The situation did not improve and the National Operations Manager decided to dismiss Mr Bayford. The letter of 12 January 2010 informing Mr Bayford of the decision cited Mr Bayford's continued quality and punctuality failures as reasons for his dismissal.

Mr Bayford claimed that his lateness was caused by his family responsibilities which were known to his employer and accordingly, as summarised by the Federal Magistrate, because he was repeatedly late for family reasons, he could not be dismissed lawfully because of his lateness.

Mr Bayford argued that his employer took adverse action against him by terminating his employment because of:

  • his family responsibilities; and
  • because he exercised his workplace right not to be discriminated against due to his family responsibilities pursuant to Victoria's Equal Opportunity Act 1995 and his employer's Equal Opportunity Policy (being a term of his employment agreement).

In applying the reasoning of the Full Federal Court decision of Barclay v Board of Bendigo Regional Institute of TAFE (2011) 274 ALR 570, the Federal Magistrate had to determine the "real reason" for the manager's decision, irrespective of the manager's subjective belief that his decision was not motivated by Mr Bayford's family responsibilities. In support of his argument, the employer provided detailed evidence in relation to the meetings with Mr Bayford, the subsequent warnings and the final decision to dismiss Mr Bayford.

In consideration of this evidence and the surrounding circumstances, the Federal Magistrate was satisfied that Mr Bayford's dismissal was not, consciously or subconsciously, because of his family responsibilities. In addition, the employer did not breach the Equal Opportunity Act as Mr Bayford did not request the employer change his working times to accommodate his family responsibilities, and without such a request, the employer could not have unreasonably refused to accommodate Mr Bayford's family responsibilities as provided by the Equal Opportunity Act.

The important points

As the adverse action provisions broaden the range of possible remedies available to employees, and the reverse onus test shifts the burden of proof to employers, it is essential that an employer's decisions affecting employees are transparent, defensible and well documented. This means that:

  • organisation policies and procedures should provide for clear decision-making and grievance handling processes;
  • grievances and issues raised by employees should be transparently addressed in accordance with the organisation's policies;
  • decisions, reasons, complaints and requests should be clearly documented and communicated to affected employees; and
  • records of meetings, decisions, reasons, and employee complaints should be retained.

Employers should also be aware that merely having good policies is not enough. In the Bayford v Maxxia case, the employer argued that its Equal Opportunity Policy only made "aspirational statements" and did not create legal obligations. The Federal Magistrate did not accept this argument and stated that while the employer did not treat Mr Bayford less favourably because of his family responsibilities, the policy is clearly intended to be honoured by the employer. Accordingly, it is important that organisations ensure that managers and employees have a sound understanding of the organisation's policies and processes.

This article was written when Joe was a partner at Clayton Utz and does not necessarily reflect his views as Vice-President of the Fair Work Commission.

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Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this communication. Persons listed may not be admitted in all States and Territories.