She complained about her bosses, so they asked staff to criticise her

What happened

Maree Storey started at The Monitoring Centre, a business that monitors alarm signals for security companies, as a control room operator in March 2000. She left in 2008 and was brought back later that year to run the business as its manager on about $100,000 a year, with a share of the profits. The company was run by its sole director and his wife, and the court described their relationship with her until early 2013 as one of mutual affection.

On 16 January 2013 she emailed the couple to say she was pregnant and asked whether the company paid maternity leave. She was told it did not. A week later the director's wife rang her about rosters and about things staff had been saying, including that Ms Storey had called staff "monkeys". The call was recorded. The court found it ended amicably, with the director's wife intending to take the matter no further.

The complaint and the call for staff complaints

Ms Storey saw that call differently. On 28 January 2013 she sent the director a letter making "a formal complaint about being discriminated against for being pregnant in the workplace". The court later found several of her accounts of the call were inaccurate.

The couple were shocked and hurt. The court found that, fuelled by those emotions, they decided to end her employment, took legal advice, and then asked at least seven employees to put in writing their experiences of Ms Storey. The court found the request was put in a non-leading way, and staff could have said good things. The responses were wide ranging and included allegations of racism. Those allegations were never tested: the employer did not try to prove them at the hearing.

On the afternoon of 13 February she was emailed a demand to attend a meeting at 2.30pm the next day to answer six broad headings of alleged misconduct. She asked for the details in writing, saying it was the first time she had heard of the allegations. The director's evidence was that they decided to dismiss her half an hour to an hour after the meeting. She was dismissed with four weeks' pay in lieu of notice.

The legal test

Ms Storey claimed adverse action under the general protections in the Fair Work Act 2009 (Cth). Section 340 stops an employer taking "adverse action" against an employee because the employee has a workplace right or has exercised one. Under s 341, being able to make a complaint or inquiry about your employment is a workplace right. Adverse action, defined in s 342, includes dismissing an employee and altering their position to their prejudice.

The complaint does not have to be the only reason. It is enough if it was a substantial and operative reason. And under s 361 the employer is presumed to have acted for the alleged reason unless it proves otherwise.

What the court decided

Judge Manousaridis found the letter of 28 January was a complaint about her employment. He found two separate contraventions of s 340. The first was the request for written complaints: because one purpose was to gather grounds to dismiss her, it meant a loss of security in her job. The second was the dismissal itself.

The couple said they acted because of the staff allegations, and the court accepted they genuinely believed them. But the timing told against them. The request to staff came straight after the letter, and at the meeting the director's wife insisted on playing the recording of the call to rebut the letter. The court was not satisfied the employer had proved the complaint was not a reason, and it found the letter was a substantial and operative reason for both steps.

Her pregnancy claim failed. The court found the couple were genuinely pleased about her pregnancy and that paid maternity leave was "an issue solely in Ms Storey's mind".

How much was awarded

Compensation came to $17,453.35: $5,898.35 for lost wages until she would have stopped work before the birth, $1,555 for a lost profit share, and $10,000 for distress, hurt and humiliation. The court tied that last amount to the process, particularly the couple's "open-ended invitation to many employees to criticise" her. The director and his wife were personally liable too, as people involved in the contraventions.

She also won $4,320 for an unpaid profit share. But the company won back $9,849 it had overpaid in her final pay, so after interest the judgment was $14,130.06. In March 2017 the court added penalties of $7,500 against the company and $1,500 against each of the couple, all paid to Ms Storey. Her costs application was dismissed.

What this means for you

If you have made a complaint at work and your employer then starts gathering material against you, that step may itself be unlawful, not just any dismissal that follows. Keep a copy of your complaint and note the dates of what happens next.

For employers, the lesson is that strong feelings about an unfair complaint are not a defence. An investigation should be prompted by genuine concerns, not by the complaint, and the worker should get the allegations in detail and a fair time to respond. If you have been dismissed, a general protections claim must be lodged with the Fair Work Commission within 21 days.