Why pinpointing decision makers is crucial for defending adverse action claims

Defending a general protections claim can be complex and high-stakes for employers. To succeed, they must demonstrate that any adverse action taken against an employee wasn’t motivated by a prohibited reason but by a lawful one, such as serious misconduct.

A recent Federal Court of Australia judgment in Pilbrow v University of Melbourne [2024] FCA 1140, has highlighted a critical aspect of the decision-making process around taking action that is adverse against an employee – employers must clearly identify the decision-maker (s) involved.

Here, we explain the importance of sound decision-making protocols and practices in business when it comes to mitigating risk in the Australian general protections landscape.

The facts of the case: Pilbrow v University of Melbourne [2024] FCA 1140

Part 3‑1 of the Fair Work Act 2009 (Cth) (FW Act) is entitled general protections. Amongst other things, it provides for a suite of protections safeguarding the exercise of workplace rights by employees. One of those protections is provided for by s 340(1) of the FW Act, which states that a person must not take adverse action against another person because the other person has or has not exercised a workplace right in their employment.

General protections cases are mostly legally complex because they often involve a detailed analysis of both statutory interpretation and factual circumstances.

In cases where an employee claims that their employer has taken adverse action against them, section 361 of the FW Act presumes that the action was taken for a prohibited reason unless the employer can prove otherwise. The burden of proof lies with the employer, who must demonstrate that the alleged prohibited reason wasn’t a reason for their decision to take the action. In practical terms, the employer must identify the decision-maker(s) involved in the action and provide their reasons for the decision.

Factual circumstances surrounding decision-making, including identifying the decision-makers, came into sharp focus in the Federal Court of Australia case of Pilbrow v University of Melbourne.

The Applicant, Dr Pilbrow, commenced employment with the University of Melbourne (University) in 2008, and at the time of the termination of her employment in early 2020, she performed the role of lecturer. In early 2020, her employment was terminated for the recorded reason of redundancy.

Dr Pilbrow commenced proceedings against the University in the Federal Circuit Court of Australia (the Court), alleging the University had taken adverse action against her by:

• alleging that she engaged in serious misconduct by deleting the files from the University’s servers, which occurred some time before the termination of her employment;
• issuing her with a final warning about the deletion of files
• later selecting her position for redundancy;
• ; and
• terminating her employment.

In her general protections claim against the University, she claimed that these four instances of adverse action were taken for reasons including the exercise of her workplace rights, namely  the making of various complaints by her during her employment.

Dr Pilbrow and the University agreed that the employee exercised various workplace rights and that the University took adverse action as listed above.

The key issue in contention before the Court was whether any of these actions were taken because Dr Pilbrow had exercised her workplace rights.

The Appeal

The Federal Circuit Court dismissed the majority of Dr Pilbrow’s general protections claim, leading Ms Pilbrow to appeal to the Federal Court.

On appeal, the Federal Court rejected several appeal grounds made by Ms Pilbrow. However, regarding the decision by the University to make allegations of serious misconduct, the Court identified that the University hadn’t identified the person(s) who decided to make such allegations.  The failure to identify the decision-maker(s) was a significant issue as the University had admitted to taking the conduct.

To successfully defend a general protections claim, the University needed to prove to the Court:

1. the identity of the person(s) who decided to allege Dr Pilbrow had engaged in serious misconduct in her employment with the University; and
2. the state of mind that actuated the decision-maker(s) in respect of deciding to make the allegation against Dr Pilbrow.

To determine whether the employer has met the burden of proof under s 361(1) of the FW Act, the reliability and significance of the employer’s evidence about its decision-making are weighed against the evidence presented by the employee, as well as the overall facts and circumstances of the case. However, the key focus of the inquiry by a Court is the reason(s) for taking the adverse action proffered by the decision-maker(s) and often those others on the periphery of the decision-making, including those who may have influenced the reasons or motivations behind the decision.

On appeal, the Federal Court found it hard to accept the human resources team that appeared to be handling the allegation, couldn’t pinpoint the decision maker. As a result, the Court concluded that the primary judge erred by finding the University had met the reverse onus of proof regarding the serious misconduct allegation, especially since the decision-maker(s) to make the allegation weren’t identified by the University in its evidence.

Here, the Federal Court concluded, relevantly:

“Dr Pilbrow’s case concept is a familiar one. Successful general protections suits sometimes succeed not because there is an evidential basis positively to conclude that adverse action was taken for a reason or reasons proscribed by pt 3-1 of the FW Act; but, rather, because the court is persuaded that, by neglecting to call evidence about the state of mind of someone who is thought to have played some role in taking it, a respondent has failed to rebut the presumption cast against it by s 361(1) of the FW Act.” (emphasis added)

In circumstances where the University couldn’t identify a decision maker, the Federal Court couldn’t address the state of mind of the decision maker, which is essential to rebut the presumption within s361 of the FW Act that the employer took the adverse action for a prohibited reason.

The key takeaways

If the employee can demonstrate to a court that a workplace right was exercised and adverse action followed, the employer bears the burden of rebutting the statutory presumption under s 361(1) of the FW Act.  Employers must identify the decision-maker responsible for any action taken against an employee that could be considered adverse, regardless of whether this results in termination.

In the absence of an identifiable decision-maker, it becomes exceedingly difficult for the employer to successfully rebut this presumption. In situations where decisions are made by a board or involve multiple contributors, best practice decision-making includes the production of supporting documentation reflecting the state of mind of each individual involved. It won’t be sufficient to point to the author or signatory of a termination letter, for example, to evidence the identity of the decision-maker(s) or their state of mind in deciding to take adverse action.

Failing to take these important steps can significantly weaken an employer’s ability to successfully defend itself against an allegation of unlawful adverse action in general protections claims.

If any of this information has raised questions for your business or you have another workplace matter you need assistance with, get in touch with our friendly Citation Legal for a confidential discussion.

About our author

Brittany Byrne is a Partner and Solicitor at Citation Legal and is based in our Brisbane office. Brittany is a leading expert in providing workplace business solutions to employers in an array of industries. Using her common-sense approach to disputes and litigious matters, she has allowed her clients to achieve commercial outcomes while protecting their reputations in the marketplace.