A Right to be Interviewed? – Adverse Actions in Short v Ambulance Victoria [2014] FCA 3

Tuesday 11 March 2014 @ 10.20 a.m. | Industrial Law

In a recent employment case considered in the Federal Court, Acting Chief Justice Marshall determined that an employee’s disappointment of an expectation to take part in an interview process was not necessarily an workplace right, within the definition of section 341 of the Fair Work Act 2009 (Cth)("the Act").

Facts

Mr Short, who had been employed by the respondents as an Ambulance Paramedic, argued that Ambulance Victoria had contravened s 340(1) of the Act.  The section provides that a person cannot take "adverse action" against another because that person has, or has exercised, a workplace right.

Mr Short submitted that Ambulance Victoria took adverse action against him by:

  • Refusing to allow him to perform higher duties;
  • Issuing him with a formal warning; 
  • Standing him down and then terminating his employment.

He believed that these actions had been taken against him because of a number of formal written complaints that he had made against two of his supervisors, Mr Moors and Mr Standfield.

Decision - Adverse Action

His Honour first considered whether adverse action was taken against Mr Short by refusing him to perform higher duties. In particular, Mr Short alleged that he had been discriminated against by Mr Stanfield when being considered for a temporary role as "Acting Team Manager". Ambulance Victoria agreed that Mr Standfield had indicated to Mr Short that an interview process would be taking place for the temporary Team Manager role. However, they contested that Mr Standfield's subsequent email stating:

"I do not intend to proceed with the interview process as I proposed to you previously. I am now aware that a competitive process need only apply if the period is longer than 3 months, at which time the upward relief would be considered a secondment rather than higher duties…"

amounted only to a disappointment of an expectation and did not amount to adverse action.

His Honour considered the meaning of the words "alter the position of an employee to the employee’s prejudice", included in the definition of adverse action in s 342(1) of the Act. Since there was no right to an interview, the reasoning for this was explained in the email, and no other employee received an interview, His Honour concluded that this did not involve any

"adverse affection of, or deterioration in, the advantages enjoyed by the employee before the conduct in question"

(Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (1998) 195 CLR 1 at [4]).

He also accepted the arguments of Ambulance Victoria that Mr Short had been off work for a considerable period of time with a stress condition and it would not be wise to place him in a stressful role on his return, and that his previous complaints did not play a part in the decision not to appoint him to the temporary position.

Further Findings

His Honour went on to find that the decision to issue Mr Short with a formal warning was related to his behaviour towards management staff, and was not related to his previous complaints about Mr Standfield and Mr Moors. It therefore did not contravene s 340(1).

Similarly, His Honour considered that the standing down and eventual termination of Mr Short, while clearly an "adverse action", was not related to any of his complaints, but rather because of concerns about his capacity to deal with a stressful job while suffering from an acute stress reaction, and because of an "unprovoked and unreasonable personal attack" on Mr Standfield, in circumstances where he had previously received a warning in respect of his behaviour towards staff performing supervisory or managerial roles.

Mr Short’s application was dismissed. However, the case illustrates the importance of employers ensuring they adhere to fair process and relevant policy, and documenting any processes that may result in an employer taking adverse action against an employee.

TimeBase is an independent, privately owned Australian legal publisher specialising in the online delivery of accurate, comprehensive and innovative legislation research tools including LawOne and unique Point-in-Time Products.

Sources:

Related Articles: