When a business faces a general protections claim from an employee, questions arise as to whether the employee has a workplace right, whether the employee has exercised that right, and whether the employer has taken action against the employee because of the exercise of such a right. The recent case of Loukis v Compaction & Soil Testing Services Pty Ltd  FCCA 281(Loukis) has provided clarity as to when an employee can be said to have exercised a workplace right, and under what circumstances an employer can be said to have terminated an employee because of such a right.
Briefly, an employee has a workplace right where they have a benefit under a workplace law or instrument (this includes the ability to initiate or participate in a process or proceeding, or the ability to make a complaint or enquiry into their employment).
Loukis and the Exercise of Rights
Within Loukis, Ms Loukis was employed as a full time Field Geotechnician by Compaction & Soil Testing Services (Compaction), a small business, between July 2019 and October 2019.
The day prior to her dismissal, Ms Loukis had taken personal/carer’s leave due to sickness, however, did not provide a medical certificate to Compaction, or obtain a medical certificate until after her dismissal. On the day of her dismissal, Ms Loukis advised Compaction’s reception that she would be late, and arrived an hour late to work. Upon arrival at work Ms Loukis was called into a meeting and dismissed for unsatisfactory attendance.
Ms Loukis sought to assert that during her employment she exercised the rights of:
- Enquiring into her wages; and
- Taking personal/carer’s leave due to an illness/injury (including the day prior to her termination);
and asserted that Compaction had dismissed her because of such.
Ms Loukis failed to show at trial that at the time of dismissal she suffered from a ‘prescribed illness or injury’. The Fair Work Regulations 2009 (Cth) (the Regulations) relevantly require that for an illness or injury to exist, a medical certificate must be provided within 24 hours of the absence. In lieu of a medical certificate at the time of dismissal, Ms Loukis was precluded from asserting she was dismissed because of an absence due to illness or injury.
At trial, Compaction asserted that Ms Loukis had been terminated for numerous reasons, including unsatisfactory attendance. The major issue as to the rights allegedly exercised, and the dismissal of Ms Loukis, was the alleged right of taking leave and whether she was terminated because of such. Driver J provided:
Ms Loukis later claimed to be sick and produced ex post facto a medical certificate verifying that she was unwell on 29 October 2019 and on 30 October 2019, but at the time of her dismissal her absence was unexplained to Mr Groat and Mr McManus.
Ultimately Driver J concluded:
…neither party has persuaded me that the real reason for Ms Loukis’ dismissal was otherwise than was stated in the termination letter, namely “unsatisfactory attendance”. The critical fact leading to the decision that Ms Loukis should be dismissed was her lateness on 30 October 2019.
…Ms Loukis took personal leave for her absence on 29 October and was able to support the claim by a medical certificate some days after the event. The Company does not deny knowledge that Ms Loukis accessed personal leave on 29 October 2019. Her absence on that day was not the reason for her dismissal. Under cross-examination Mr Groat conceded that if he had known of Ms Loukis’ illness, he may not have terminated her employment. I am satisfied, however, that neither Mr Groat or Mr McManus knew that Ms Loukis was temporarily unwell when they terminated her employment.
Ultimately, this case provides insight to both employers and employees as to when a workplace right is exercised and what is required to form a nexus between a workplace right and adverse action.
An employee needs to show they have exercised a right according to the procedural requirements of the instrument/law they are claiming to have a right under. Further, the employee needs to make their employer aware of their exercise of a workplace right, in order to be able to claim that their employer has taken action because of their exercise of a right.
Here, had Ms Loukis complied with the Regulations and provided a medical certificate to her employer within 24 hours (which in turn would have made them aware of her illness), she may have been able to establish that she adequately exercised a workplace right, and that her employer was aware of such.
If your business is facing a general protections claim, it is always recommended that you seek appropriate advice. Should you require assistance with a general protections claim, or any employment matter, do not hesitate to contact Saines Legal.
Saines Legal is a full-service employment law firm available to provide tailored advice and guidance in relation to any workplace issues. We have also developed a small business retainer package designed to provide complete employment support at a fixed weekly fee, affording our small business clients complete peace of mind regarding workplace legal obligations and insurance against the costs of any unexpected issues. Do not hesitate to contact us via firstname.lastname@example.org or (07) 3324 1055, to organise a consultation.
The contents of this article are general in nature and is for information purposes only. The content of this article does not constitute legal advice and should not be used as such. Should you require assistance with a specific legal matter, it is recommended that you seek appropriate advice.
Authors Bradley Ellacott (Lawyer) and Nigel Saines (Principal).