The worker, maintenance fitter Alan McDermott, was absent from work for 29.5 days between December 2007 to September 2010 on varying forms of personal or carer’s leave.
Importantly, these absences were legitimately taken in almost every instance. However, the relevant South32 subsidiary, Endeavor Coal, decided to address the issue by reallocating him from weekend to weekday shifts where absences were easier to cover.
After a few months the fitter was moved back to higher paying weekend shifts after agreeing to an attendance management plan.
“However, Endeavour moved McDermott back to weekday shifts for a second time after an absence where he failed to comply with the Attendance Plan, and issued him with a final warning for absenteeism,” Minter said.
“McDermott, through his union the CFMEU, challenged both reallocations and the warning on the basis that they represented adverse action because he had exercised his workplace right to take legitimate sick leave.”
In a recent split Federal Court decision the majority of judges (two) sided with Endeavor Coal’s actions while the dissenting judge argued that the fitter’s absence was a consequence of him exercising a workplace right.
With the matter next heading to the High Court the law firm outlined possible ramifications.
“If the decision stands, it will make it easier for employers to deal with the operational consequences of unplanned and ad-hoc personal leave,” Minter said.
“It may also have broader implications for the scope of the adverse action protections in other areas.
“However, at least until the High Court has considered the matter, great care should be taken. The general protections provisions are clearly intended to protect employees from adverse consequences if they exercise a workplace right, including the taking of legitimate personal leave.
“Even if the decision stands, a discrimination complaint might still succeed and, if the ‘adverse’ action involved dismissal, an unfair dismissal application might be available.”
Minter said employers much also be very careful in identifying reasons for making decisions which could be adverse to employees who exercise a workplace right.
“These claims often turn on very fine distinctions between the fact of exercising a workplace right, and the true reason for the employer's action. Good documents and a thoughtful decision making process are essential.”