The following case was a recent decision in the Federal Circuit Court of Australia . The case gives you an idea of how the court deal with adverse action claims and how it decides whether someone’s job was terminated because of redundancy or discrimination. The law is complex regarding this issue and it’s a good idea to obtain quality advice from one of our adverse action lawyers.
Lai v. Symantec (Australia) Pty Ltd
A female worker of a software company had been working there for six years. During her tenure, she received performance bonuses as her evaluations were excellent. She was promoted to a managerial position two years after being hired. In 2011, she informed her superior that she will take a maternity leave to give birth. She was granted her leave and when she returned to work, she applied for parental leave which was to last for eight months. One month prior to her parental leave, she was summoned by her superior to inform her that her position has become redundant and she would have to be dismissed. She was given the opportunity to be re-deployed within the company but there was no job that could be given to her as the company had been downsizing its labor force. She was terminated and given 21 week’s pay in lieu o notice and for severance.
She then filed an adverse action claim on the ground that her termination was not really for a genuine redundancy but because she was pregnant and because she had already informed the company that she was going to exercise her right to a parental leave.
On the part of the software company, superior testified that the redundancy was genuine as there were other workers in the same company who were dismissed alongside her.
The only questions before the court were: whether or not the dismissal was an adverse action; and whether or not the adverse action was motivated by discrimination against the worker because of her gender or because of her pregnancy and because she proposed to exercise her right to parental leave.
In determining the question of the existence of an adverse action, the court took noted that the Fair Work Act (Section 340) forbids the employer from taking adverse action against a worker because she has exercised or is about to exercise or proposes to exercise a workplace right. The Fair Work Act (Section 351) also prohibits the company from taking adverse action against the worker because of her race, sex, family responsibility or pregnancy. Discrimination is a prohibited reason for an adverse action of termination. The worker’s position can be terminated for unsatisfactory performance of her duties or for genuine redundancy. The issue was whether or not there was a genuine redundancy.
The adverse action of the company in terminating the position was not disputed. The only thing disputed was the reason for it. The immediate and operative reason which prompted the dismissal must be viewed as an issue of fact which has to be proved by evidence. There was reliable and credible evidence that the decision to terminate the position was made on the basis of a document that provided the profile of jobs which were to be declared redundant. The superior testified that the same profile and criteria were used to determine promotions.
On the other hand, the worker gave evidence that she had already thought at the time that she took her maternity leave that her job may be in danger as her duties would be performed by someone in Singapore while she was on her maternity leave. She also realized that when she went on parental leave for eight months, the duties and responsibilities of her position will also be performed by another employee of the software company in Singapore. She testified how the company has been consistently trying to trim down their overhead expenses even before her maternity leave.
The court held that redundancy occurs when the business no longer desires for work to be performed. In this case, the software company no longer desired the manager’s work to be performed in Australia but in Singapore because it had been downsizing the working force in Australia to trim down overhead expenses for employees’ salaries.
The court held that the adverse action was not for a prohibited reason. It was not made because of the worker’s gender, pregnancy or having proposed to exercise her right to take parental leave.
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