In July 2022, CJ Onetree Pty Ltd (the Company) employed Ms Kim (the Employee) as a hairdresser on a full-time basis. Ms Choi (Director Choi) was Ms Kim’s manager as well as a director of the company.
In March 2023, Ms Kim asked Director Choi if she could take a period of personal leave as she felt unwell and sent her several extracts from workplace instruments about her entitlements.
After a series of text messages, Ms Kim claimed that Director Choi responded saying that she was unable to “fulfill” such requirements and that it “would be good if you can look for a workplace that suits you.” Director Choi then said that she didn’t understand why the employee had sent her the extracts, and that “I did my best to make things convenient for you but since you find everything uncomfortable, please go and look for a good workplace that you want.”
Ms Kim responded that she would seek work elsewhere and would collect her belongings from the salon. The Fair Work Commission (FWC) found that these statements did not indicate a voluntary resignation but rather she was complying with Director Choi’s suggestions, which gave her “little to no option” but to leave the business.
Ms Kim said that she felt obligated to comply with Director Choi’s direction, noting that she never intended to imply or suggest that she wished to end her employment.
A few days later, the company sent a termination letter that said it considered the employee’s performance and conduct was unsatisfactory, and that she was being dismissed for having “no pleasant personality” and “no patience”, failing to follow reasonable directions and not promoting and protecting its interests.
The letter did not suggest that Ms Kim had mutually agreed to end the employment relationship or that she had chosen to resign.
Ms Kim states that her employment was not terminated by mutual agreement as contended by company, and she was dismissed.
The company objected to the employee’s general protections application on the grounds that Ms Kim was not dismissed.
The FWC held a statement from a director that “it would be good if the employee found a workplace suitable to them or that suits them” is highly indicative that their employer no longer wants the employee to work for them.
As Ms Kim had been advised three times that she should effectively seek work elsewhere, the FWC took the view that she understood that Director Choi was bringing the employment relationship to an end, and that this was a reasonable view to have held in all the circumstances.
The FWC concluded that Ms Kim had been dismissed and cleared her to pursue a general protections claim.
What are ‘general protections’?
The general protections provisions under the Fair Work Act 2009 (Cth) (FW Act) include protections from unlawful termination and many other matters. The general protections provide that an employer must not take adverse action against an employee (or prospective employee) for a range of prohibited reasons, such as because the employee has exercised a workplace right.
What are ‘workplace rights’?
The FW Act prohibits an employer from taking adverse action against an employee because the employee has exercised or proposes to exercise a workplace right.
An employee has a workplace right if the employee:
- Is entitled to the benefit of, or has a role or responsibility under, a workplace law, workplace instrument or order made by an industrial body; or
- Is able to initiate or participate in a process or proceedings under a workplace law or workplace instrument; or
- Is able to make a complaint or inquiry:
- To a person or body having the capacity under a workplace law to seek compliance with that law or a workplace instrument; or
- If the person is an employee – in relation to their employment.
The meaning of adverse action
Adverse action in relation to workplace rights is prohibited and both the term “adverse action” and the term “workplace rights” are separately defined to include a wide range of specific actions designed to prevent unfair conduct in the workplace.
Adverse action is any action taken by the employer which is detrimental to the employee, or causes them harm, or results in dismissal.
Dismissal is not the only example of adverse action. Other actions include:
- Altering the position of an employee to the employee’s detriment.
- Discriminating against an employee.
- Refusing to employ a prospective employee.
- Offering different terms and conditions to a prospective employee.
- Causing injury to the employee.
- Threatening to take any of the actions above.
How did Director Choi take adverse action against Ms Kim?
This case is an example of an employer taking adverse action against an employee who is proposing to exercise a workplace right.
In this case, Ms Kim made an inquiry to her manager, Director Choi about her personal leave entitlement.
Ms Kim’s entitlement to personal leave was derived from the National Employment Standards (NES) under the FW Act.
Ms Kim had an entitlement to take personal leave as she was employed on a full-time basis and, she was seeking to use it as she was feeling unwell.
Director Choi took adverse action against Ms Kim because she was effectively dismissed after making such enquiries.
Key lesson for employers
Employers should be aware of the various workplace rights that an employee or prospective employee can choose to exercise.
Other examples of workplace rights include, but are not limited to:
- Requesting flexible working arrangements under the FW Act
- Making an inquiry or complaint to a statutory body (such as the Fair Work Ombudsman) or to a union
- Using or seeking to access leave such as parental leave, annual leave, or personal leave as highlighted in this case.
If an employer is unsure about whether an employee has a workplace right, they should seek advice.
Help for businesses
The Fair Work Ombudsman have resources to help employers including tools and information in their Small Business Showcase.
There is also an Employer Advisory Service to help small business employers to meet their obligations under the FW Act.