In the matter of Noonan v XYZ Security Services Pty Ltd trading as Advent Security Services [2023] FedCFamC2G 666 a judge has found that an employee was dismissed because he asked a director not to call him ‘a [expletive]’, despite the complaint being made five months prior to his dismissal for poor performance (of which there was evidence). The employee was awarded $93,500 in compensation, and the issue of pecuniary penalties will be determined at a later date.
Background
Mr Noonan commenced employment with XYZ Security Services Pty Ltd t/a Advent Security Services (XYZ) in September 2017.
Throughout his employment the sole director of XYZ would refer to Mr Noonan and other employees as ‘a [expletive]‘. The evidence on the director’s use of the word varied with Mr Noonan claiming that he used it in anger and also in an unprofessional jovial manner, whilst witnesses for XYZ said he used it occasionally in a jovial manner and never meant offence.
The director and Mr Noonan would also have meetings and go out for coffee multiple times per week.
In April 2018, during a meeting with XYZ’s business manager, the director asked Mr Noonan “What have you achieved today [expletive]?” After this meeting, Mr Noonan sent an email to the director asking that he be treated with respect and that he be addressed by his actual name. The director responded with a phone call saying “are you [expletive] serious”.
After the complaint, the director stopped having meetings and rarely spoke to Mr Noonan.
In September 2018, the director dismissed Mr Noonan, telling him he wasn’t a good fit for XYZ.
In court
Mr Noonan applied to the Federal Circuit and Family Court claiming (amongst other things) he was dismissed for complaining to the director about being called ‘a [expletive]‘.
XYZ argued that Mr Noonan was dismissed because of underperformance, and stressed that, given the complaint was made five months prior to dismissal, it did not form a substantive and operational reason for terminating his employment.
XYZ’s evidence supported the assertion that Mr Noonan was underperforming, as it was accepted that the director began reviewing his employment figures at the end of August 2018. These showed that Mr Noonan had only completed two deals and had not brought any new contracts to XYZ. The director was also the sole decision maker when it came to terminating Mr Noonan’s employment.
The director also admitted that he swore in the workplace, but in a ‘jocular or mateship tone of voice’. Regarding his change in behaviour towards Mr Noonan, the director claimed this was to be more respectful and professional given the substance of the complaint.
Decision
The Judge was satisfied that Mr Noonan’s complaint constituted the exercise of a workplace right under section 340 and 341 of the Fair Work Act 2009 as “The communication of the experience and interactions of an employee in the workplace with a manager and colleague, and request concerning the use of language in the workplace clearly fall within the scope of employment.”
It was also accepted that “the complaint has a legal underpinning and satisfies the requirements of a ‘complaint’ under section 341 of the FW Act” because under the relevant Victorian WHS legislation, and the anti-bullying provisions of the Fair Work Act, “employees are entitled to a workplace free from bullying”.
The Judge also accepted that Mr Noonan had been underperforming, and that this did form part of the reason for his dismissal. However, she was also satisfied that the relationship between the director and Mr Noonan markedly changed after the complaint, and that XYZ had not provided any evidence that this was not the case.
The Judge found that XYZ had “not discharged the onus to prove on the balance of probabilities that a substantial and operative reason for [the director] deciding to terminate the Applicant was not the Name Complaint”. Of particular relevance was that, despite there being five months between the complaint and dismissal, the director’s markedly changed behaviour towards Mr Noonan (not holding meetings and rarely speaking to him), had continued for that entire time.
Ultimately the Judge was satisfied that the complaint and Mr Noonan’s poor performance were the substantial and operative reasons for the decision to terminate his employment.
Mr Noonan was awarded $93,500 for economic and non-economic loss. The matter of pecuniary penalties will be determined at a later date.
Key takeaways
Employees will generally be exercising a workplace right when they are complaining about the behaviour of another worker, as this affects their right to a safe workplace under WHS legislation. As such, employers need to be cautious with how they respond to such complaints, and ensure that no adverse action is taken against an employee because of it.
Workers, especially those in senior positions, should be cautious about how they react to an employee who makes a complaint against them. As demonstrated by this case, a significant reduction in interactions can be interpreted as a workplace relationship ‘souring’. This can lead to a dismissal which occurs a significant amount of time after a complaint, and that is for a completely legitimate reason, to carry an increased risk of a successful general protections claim.
More information
If you require assistance or advice on issues regarding the risks and requirements associated with terminating employment, or any other employment matter, please contact:
Joe Mullavey
Principal
M: 0416 794 061
E: jmullavey@pageseager.com.au
Peter Foster
Associate
T: (03) 6235 5153
E: pfoster@pageseager.com.au
Published: 1 September 2023
