This is currently the third decision in this area, since damaging action was introduced into the Industrial Relations Act 1979 (WA) (IR Act) on 20 June 2022. These protections were based on some of the general protections found in Part 3-1 of the Fair Work Act 2009 (Cth).
In this matter, the Claimant argued, following his employment-related complaints or inquiries, that his proposed transfer and loss of line management responsibility was a threat to alter his position, which caused disadvantage to his employment and caused loss or injury. The Respondent argued that it made the decision to transfer his employment based on concerns for safety, the Claimant having previously agreed that an alternate Mental Health Division role – with managerial responsibility – was unsafe for him.
The findings of the Court provide some useful guidance for employers and employees in considering and determining disputes regarding damaging action.
Summary of Facts
In August 2016, the Claimant commenced as Acting Team Leader of Mental Health at the Respondent.
Following an anonymous complaint in April 2018, the Claimant agreed to a transfer to Midland Community Mental Health. In June 2018, the Claimant was appointed as a Team Leader of Midland Community Health Service.
Whilst in the above position, the Claimant filed 10 complaints or employment-related inquiries, from 2018 to September 2023, against the Respondent. Those included alleged matters such as toxic work cultures, bullying and sexual discrimination.
The evidence was contested as to whether it was safe for the Claimant to manage staff, particularly as he had expressed an interest in a role that did not have managerial responsibilities.
On 25 August 2023, the Acting Executive Director of the Respondent wrote to the Claimant and informed him, amongst other items, that he was authorised to transfer the Claimant into a new role, described as:
- being equivalent in qualification and function, more akin to a Social Work Manager role; and
- not having line management responsibility for staff (at [149]).
(the Transfer Letter)
The above letter outlined the proposed transfer of the Claimant’s role and provided the Claimant an opportunity to respond to the proposal before any final decision was made.
Consideration and Findings
Damaging Action
The basis for the alleged damaging action claim was that in proposing to remove line management responsibility in the transfer role, the Respondent threatened to alter the Claimant’s position to his disadvantage (ss 97(a)(ii), 97(a)(iv) and 97(a)(v) of IR Act). As a result of this, the Claimant sought general damages for breach of s 97A of the IR Act and payment of a civil pecuniary penalty (ss 97B(2)(c) and 97B(4) of IR Act).
Threat and Altered Position
The Court was not satisfied that the Transfer Letter, or its contents, constituted or communicated a ‘threat’ to alter the Claimant’s position to his disadvantage. That was because the proposed transfer did not convey:
- an intention to inflict harm;
- convey an intimidatory purpose; and/or
- a demotion to a role with a lesser classification (at [168]).
With that said, the Court did find that the proposed transfer may alter the Claimant’s position. This was tentative as the Transfer Letter discussed an opportunity for the Claimant to respond to the proposed transfer (at [180]). Therefore, no alteration had effectively occurred at the time alleged.
Disadvantage
Despite alleging that the proposed transfer was ‘in practical terms, a demotion’, the Court stated that there was no evidence which supported his subjective opinions (at [188]).
If Damaging Action had Occurred, was it Taken because the Claimant made an Employment-related Inquiry or Complaint?
The Court did not find that damaging action had occurred, however for completeness, the Court helpfully outlined the steps if damaging action had occurred. These steps are as follows:
- where an employee alleges an employer has taken, or threatened to take, action against them, the employee is required to prove:
- the action taken or threatened action constituted damaging action within the meaning of s 97(a) or (b) of the IR Act; and
- they made an employment-related inquiry or complaint, which they were able to make (which precipitated the damaging action);
- if the above is established, the onus shifts to the employer to prove that the employer was not motivated by the reason alleged; and
- if the employer does not discharge the onus, the reason alleged by which the employee stands as proof of the fact that the employer has taken damaging action for the reason alleged (or reasons) (at [213]).
On the evidence, the Court found that the reasons for creating the proposed transfer role were not based on the series of complaints made by the Claimant, namely:
- the Respondent discharged its onus of s 97A(2), finding the role would not expose the Claimant or others to potential health and safety risks associated with the Claimant being in a managerial position; and
- the complaints were not a substantive and operative reason or included as a substantive or operative reason for the decision (at [239]).
Loss or Injury
The Claimant was unable to prove there was any loss or injury to the Claimant (at [264] and [268]).
Conclusion
The case demonstrates the preliminary thresholds that employees must establish to pursue damaging action.
Employers should, before decisions are made, or proposed to be made, thoroughly investigate, and be able to demonstrate, the lawful circumstances and reasons that cause that decision, to put them in the strongest position to defend such claims.
Failure to do so can cause lengthy proceedings to determine internal operational matters and cause financial and reputational risks.
Please find the link below to the full decision for your information: https://www.imc.wa.gov.au/resources/decisions?id=202400982 .
This case summary was written by Victoria Stamper, Principal Lawyer and Cyle Schneider, Associate in the Employment, Workplace Relations and Safety Team. Please do not hesitate to contact them on (08) 9321 0522 if you have any questions.
