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Distress and humiliation suffered after adverse action

January 28, 2016

The Federal Circuit Court has found The Monitoring Centre (TMC) took adverse action against their general manager who had made a workplace complaint when the company asked employees to provide negative feedback about the general manager and ultimately used this feedback to terminate her.

The former employee made a formal complaint against the director’s wife, who was in the role of acting director whilst he was away. The complaint was due to a previous conversation that the employee and the acting director had via telephone conversation. The employee accused the director of criticising her for having “baby brain” and that she was “verbally attacked over the phone about her role as a general manager”.

After the workplace complaint, the employer requested that other employees give written negative feedback about the general manager’s performance and management skills. The employees gave feedback to the effect that she often belittled them, called the “monkeys” and made racial remarks. Staff members also accused her of trying to “get the sack” because she was denied maternity leave and wanted to “force [TMC’s] hands so she could have them up for unfair dismissal”.

TMC then relied on this negative feedback to dismiss the general manager.

The employee brought a General Protections Application against TMC and also claimed that she exercised a workplace right within the meaning of s.341 (a) (c) (ii) of the Fair Work Act when she wrote an email to management, enquiring whether TMC had a paid maternity leave policy and that she was adversely affected for doing so.

Federal Circuit Judge Nicholas Manousaridis found that TMC had taken unlawful adverse action against the general manager as they asked for employees to provide negative feedback about the general manager and did so deliberately in retaliation to the general manager putting in a workplace complaint. Ultimately, the employer used this feedback in their final decision to terminate the employee.

“I find, therefore, that [the director’s wife] requested at least seven employees to put in writing information in relation to their experience in the workplace involving [the general manager]; that [the director’s wife] made those requests after she became aware of [the general manager’s] letter of 28 January 2013; and she and [the director] did not decide to make those requests in the course of, or for the purposes of any ongoing investigation,” he said.

The general manager’s claim that she was terminated due to her being pregnant was rejected as Judge Manousaridis found that the director and his wife were “genuinely pleased and happy for her”.
Given the general manager had secured a job elsewhere after her dismissal, he reduced her compensation for economic loss to $5,898.35, plus an additional $1,555, representing a proportion of its 2013 yearly profits and $4,320 for its 2012 profits (she had a profit share deal under which she started on a 1% share and it increased by 1% annually).

Due to TMC’s incorrect termination process and the hurt, humiliation and distress the employee suffered due to the negative comments made against her by other employees, the Judge ordered an additional $10,000 be awarded to her for compensation.

“A significant casual factor in the distress, hurt, and humiliation the applicant experienced was the manner by which the employer obtained information from employees about the applicant… I find that the manner in which the employer proceeded to terminate the applicant’s employment was undertaken for reasons that included as a substantial and operative reasons the applicant having sent the letter of 28 January 2013 and that, therefore, the distress, hurt, and humiliation the applicant experienced was caused by TMC’s contravention of s.340 of the FW Act, “Judge Manousaridis said.

To find out more about your rights and obligations in relation to employees who have, or who have exercised a workplace right or made an enquiry in relation to their employment, please call the National Retail Association Hotline on 1800 RETAIL (738 245).

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