A receptionist has won an adverse action case against her former employer – a brothel called the Daily Planet – which dismissed her after she refused to shift from permanent part-time to casual employment.
In March 2017, the brothel was found to have breached the Clerical and Administrative Employees (Victoria) Award 1999, the Workplace Relations Act 1999 and the Fair Work Act 2009 for failing to pay the receptionist correctly with regards to meal breaks, penalty rates, personal/carer’s leave, superannuation and payment in lieu of termination. The court accepted that these breaches were not deliberate, nevertheless both the brothel and its manager were penalised for the breaches.
However, the court found that the adverse action was deliberate. The adverse action claim related to the pressuring of the employee into a new workplace arrangement that ended her part-time status and made her a casual employee, and terminating her employment when she refused to accept the new arrangement.
“The adverse action was a deliberate attempt to ensure that the employee did not retain her workplace rights. It was serious and aimed at exploiting the employee,” said Federal Circuit Court Judge Grant Riethmuller. He added: “The actions of the employer were at best ham fisted and at worst high handed, showing no regard for the needs of the employee.”
Judge Riethmuller determined that the Daily Planet should pay $62,700 in penalties and the manager $12,540, and also awarded damages of $92,411.37 and outstanding superannuation at $5,789.89, with the brothel and manager jointly liable.
The Daily Planet was placed into liquidation after the receptionist left, which caused significant delays to the court case.
Bottom line for organisations
- Under the Fair Work Act 2009, it is unlawful for employers to take adverse action against an employee for exercising a workplace right.
- Adverse action claims can result in costly and time-consuming legal proceedings, and damage to an organisation’s reputation and brand.
- Ensure that you are educated about the rights of employees that are protected by the general protections provisions of Fair Work Act 2009.
Learning Seat can assist by providing clients with training on the Fair Work Act 2009, with particular emphasis on awareness of what constitutes adverse action.
This suite has been designed to educate anyone in your organisation with people management or HR responsibilities about the rights of employees that are protected by the general protections provisions of the Act. Given the increasing number of adverse action claims that have been raised against employers since the Act came into force, this suite is essential for the protection of your business against this type of claim.