Welcome to Fair Work Friday! This week’s case is incredibly technical and confusing. To be honest, I am still scratching my head a little, but after lots of reading, I think I may know where the Judge was coming from. I don’t necessarily agree with the logic, but I understand why the outcome went the way it did.
The Case: When a Valid Reason Is Not Enough
An aged care nurse practitioner had been on workers organisation for a psychological injury since 2018. By 2021, medical evidence confirmed she simply could not perform the core requirements of her role. On the surface, the organisation had a clear, legal path to end her employment based on medical incapacity.
However, Judge Catherine Symons in the Federal Circuit Court found the dismissal was unlawful. Why? Because the decision to terminate was also connected to the fact that she had made bullying complaints three years prior. Under Australian law, a dismissal is unlawful if a prohibited reason—like a past complaint—is even a tiny part of the motivation.
The Ruling: The Failed Decision-Making Process
The Court ordered the employer to pay $22,000 in compensation and an $8,000 penalty. The process that failed here wasn’t about her medical incapacity—everyone agreed she was too unwell to work. The failure was in the “how” and “why” behind the termination.
Alfred Health failed because:
- They lacked clear guidance for managers: They had no internal rules or training on how to handle employees who speak up.
- They used a biased decision-maker: The person who made the final call to terminate was the same person involved in the original bullying drama. The Court called this having skin in the game. A fair process would have used an independent person to review the file.
- They had no paper trail for the motive: Because the decision-maker didn’t give evidence in court, the employer couldn’t prove the bullying complaint wasn’t sitting in the back of their mind when they signed the termination letter.
How to do it better:
- Independent Eyes: If you are dealing with a complex termination, ensure the person making the final decision is independent. If the decision-maker has been involved in the underlying conflict, it is almost impossible to prove their motives were pure.
- Update Your Procedures: Your termination procedures must include steps to check for protected rights. This ensures you stop and ask: Is this person being dismissed partly because they spoke up?
The Bloom HR Takeaway: A Note from Nat
I must admit, even I struggled to wrap my head around this one! If she can’t work, she can’t work—right? What does it matter if she made a complaint three years ago? The doctor said she couldn’t come back, so what is a company meant to do—keep her employed forever just because she once made a complaint?
I get it now. In those three years, the organisation did nothing to improve their processes around termination, managing psychological injuries, or handling bullying complaints. They didn’t do any manager training. For a large organisation like this, Judge Symons wanted to send a clear message: You cannot ignore your systemic failures. While a small business might not face this exact level of accountability, the lesson is the same. The Court uses something called the Reverse Onus of Proof.
In most court cases, you are innocent until proven guilty. In Adverse Action claims, the law flips. If you terminate someone who has made a complaint, the law assumes you did it because they complained. It is up to you to prove that the complaint played 0% part in your decision.
If your decision-maker has a grudge or skin in the game, you will almost always lose that battle. It’s not about the result; it’s about the intent behind the decision.
Are your managers equipped to navigate complex employee issues, or are you one hidden motive away from a legal headache? At Bloom HR, our HR Advisory service specialises in manager training and support for difficult terminations, ensuring your processes remain fair and transparent.
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