Adverse action - Warning for employers to document disciplinary action in writing

Written by Jennifer Sant | 05 September 2011
Posted in Unlawful discrimination

The recent case of Bayford v MAXXIA Pty Ltd [2011] GMCA 202 demonstrates the broad application of the adverse action provisions of the Fair Work Act 2009 and the importance of employers documenting their reasons for any disciplinary action.

Mr Bayford was employed as a call centre operator working a 9.00am to 5.30pm roster. A year after being employed Mr Bayford’s son was born and, with Mr Bayford’s agreement, his rostered hours were changed to 9.30am to 6.00pm. Ten months later Mr Bayford’s supervisor and a HR consultant held a formal counselling session with Mr Bayford about poor work performance and consistent lateness to work.  During the meeting Mr Bayford explained that his lateness was related to his son’s teething and the fact that he was “not getting much sleep”. With regard to his poor work performance, Mr Bayford said that he hoped “it’s understood that I have a wife and kid at home and they need me”.

Despite an initial improvement in his performance, Mr Bayford’s lateness and poor performance continued and after further formal meetings he was given two written warnings and then dismissed for continued poor quality and lateness. Mr Bayford claimed before the Federal Magistrate that his employer took adverse action against him by terminating his employment because :

• of his family responsibilities
• he exercised his workplace right not to be discriminated against due to his family responsibilities pursuant to Victoria Equal Opportunity Act 1995 and his employer’s Equal Opportunity Policy.

The Federal Magistrate held that in finding whether there had been any adverse action he had to determine the “real reason” for the manager’s decision, irrespective of the manager’s subjective belief that his decision was not motivated by Mr Bayford’s family responsibilities. In support of his argument, the employer provided detailed evidence in relation to the meetings with Mr Bayford, the subsequent warnings and the final decision to dismiss Mr Bayford.  The Federal Magistrate found that the dismissal was not consciously or subconsciously because of Mr Bayford’s family responsibilities and the employer had not been in breach of the Equal Opportunity Legislation as Mr Bayford had not requested his working times be changed to accommodate his family responsibilities.

Tips for employers

• Policies and procedures should provide clear decision-making and grievance handling processes which are simple enough to ensure full compliance
• Grievances raised by the employee should be transparently and efficiently addressed
• Complaints, decisions and reasons should be clearly documented
• Records of meetings, complaints, decisions and reasons should be retained
• Managers should be educated on organisation’s policies and processes