Adverse Action: Moore v Slondia Nominees Pty Ltd [2012] FMCA 273

Moore v Slondia Nominees Pty Ltd [2012] FMCA 273

Ms Moore was employed by Slondia Nominees. A month after lodging an underpayment claim with the Industrial Relations Court of South Australia, she was told by a manager of Slondia that there were no more hours for her to work. The company stated that the reason for her dismissal was because of a 'slowdown in business'.

Ms Moore claimed Slondia took adverse action against her by dismissing her, in breach of section 341 of the Fair Work Act (2009), for exercising a workplace right. Slondia, however, claimed that Ms Moore was dismissed due to a downturn in business.

Under section 361 of the Act there was a presumption that Slondia had dismissed Ms Moore because she exercised a workplace right by pursuing owed wages. It was found by the Federal Magistrates Court that Slondia had failed to overturn this presumption and had taken adverse action against her.

The Federal Magistrate found that Ms Moore's dismissal had been unfair. In coming to this decision it was noted that Slondia did not make any staffing changes to other branches or aspects of the business. The "slowdown of business" had only affected Ms Moore's position, and not that of other staff. Federal Magistrate Lindsay remarked that "the dismissal seemed to be an isolated event rather than part of a general strategy for dealing with the difficult trading conditions".

The decision about whether a pecuniary penalty would be imposed on Slondia has been reserved until further submissions can be heard.

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