Why employers can’t tolerate victimisation

Employers need to take care to ensure that employees and managers are aware of their obligations under Equal Opportunity, Work Health and Safety, and Fair Work laws to ensure workers are not disadvantaged because they have rights or characteristics protected by that legislation.

Equally importantly, the message that it is unacceptable to victimise anyone who makes a complaint needs to be sent loud and clear.

A range of recent cases in different jurisdictions illustrate why the concept has such a broad reach and the consequences for employers who fail to heed the warnings.

In the first case, the NSW Administrative Decisions tribunal ordered an employer to implement an equal opportunity program, conducted by lawyers from a large law firm, after it found that managers within the company had mocked an employee who had made complaints about race, carers and disability discrimination. It is perhaps ironic that the employee received damages of $5000, but the compliance program is likely to cost the employer much more than that.

In a separate unfair dismissal case, Fair Work Australia found that it was unfair to terminate an employee because he had helped another former employee with an unfair dismissal case against the employer. The employer was ordered to pay $50,000 compensation to the employee.

The Federal Magistrates Court found that an employer who had terminated an employee’s employment because she had taken two days of sick leave was in breach of the Fair Work Act “adverse action” provisions. The company persisted through trial in attempting to justify the termination on the grounds of misconduct, as a result of which the employee incurred significantly greater legal costs. The employer was fined $20,000 and ordered to pay the employee nearly $40,000 in compensation and nearly $60,000 in legal costs because of its “unreasonable” conduct of the case.

In a separate decision the Federal Magistrates Court found an employer had breached the “adverse action” provisions when it terminated the employment of an employee who had made a formal complaint about underpayment of wages. A penalty is yet to be determined in the case.

The decisions highlight the importance of employers impressing on managers and other employees that they need to be aware of the substantive rights of employees arising from legislation designed to be beneficial and protective. 

In some cases the relevant laws place an onus on the employer to show that the reason that action was taken against an employee was not because of a complaint. It’s a tough test to pass. Retaliating because someone has elected to exercise those rights is in some cases worse than the primary conduct alleged, and the case examples discussed show that it can be costly.

Peter Vitale has been practising in employment and industrial relations law for over 16 years. After being a partner at an international law firm, Peter established and was principal of CCI Lawyers, the Victorian Employers Chamber of Commerce and Industry’s (VECCI) associated employment law practice for four years.