The Federal Circuit Court has rejected an adverse action claim from a former Melbourne human relations manager who claimed she was bullied as a result of her Italian background.
But the court heard the HR manager was sacked from her job for misusing the company’s confidential documents for financial gain.
Dora De Blasio filed an adverse action claim against her employer, Melba Support Services, claiming she was fired in November 2012 after making a bullying complaint against Melba Support Services chief executive Glenn Foard.
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De Blasio claimed Foard unfairly criticised her work and made derogatory comments about her Italian background. She sought reinstatement to her position on the grounds her employer acted adversely against her because she exercised her workplace rights when she made a bullying complaint and later took personal leave.
But Judge Grant Riethmuller heard De Blasio’s complaints of bullying were unsubstantiated and found her to lack credibility as a witness.
Instead, Riethmuller found Melba Support Services had a “genuine reason” to terminate De Blasio’s employment as email evidence presented to the court demonstrated she substantially reproduced Melba Support Services copyright-protected documents in the course of her work for another organisation.
Riethmuller also found Melba Support Services had genuine grounds for terminating De Blasio’s employment because she was found to have shared confidential details of her bullying complaint with individuals employed by other disability service providers, who may have been relied upon as witnesses.
“[De Blasio] well understood this was not appropriate and was employed in a position where she would have been expected to understand this,” said Riethmuller.
“It was not the conduct of an employee unfamiliar with human resource issues.”
Lorensz Senn, corporate services manager at Melba Support Services, told SmartCompany the organisation “acted reasonably and lawfully at all times during this matter”.
“We believe this is reflected in Judge Riethmuller’s decision to dismiss the application,” Senn says.
Employment law specialist Peter Vitale told SmartCompany an adverse action claim arises when an employee alleges their employer has taken an action, whether it is termination or another form of disadvantaging them in their employment, for one of the reasons prohibited by the Fair Work Act.
Vitale says the prohibited reasons are broad in scope and include employees making bullying complaints, exercising workplace rights to take leave, being a union delegate, as well as a general provision that allows employees to make any form of complaint or inquiry in relation to their employment.
“In this case, the employee claimed that the adverse action was termination and the prohibited reasons were she had made a bullying complaint and taken sick leave,” Vitale says.
“At this point, the Fair Work Act says it is then up to the employer to prove that they were not the reasons for the action… there is a reverse onus of proof on the employer to satisfy the court the reasons that were alleged were not the reasons for the action.”
“That typically involves calling everyone involved in the decision-making as a witness to give their version of events. If the court is satisfied based on the evidence that the prohibited reasons were not the reasons for the action, the claim will fail.”
But Vitale says, by implication, this means the employer must explain in practical terms what the actual reason for the action was.
“In this case, based on the email evidence of misuse of the employer’s copyrighted material, the employer made a decision to terminate the employee and the court accepted that was the actual reason for termination,” he says.
SmartCompany was unable to contact De Blasio.
*This article was updated at 3.20pm on Wednesday October 15 to include comments from Melba Support Services.