A former restaurant manager who claimed he was dismissed due to his sexual orientation has had his adverse action claim thrown out by the Federal Circuit Court.
Felix Mak, who worked for Brasserie Pty Ltd until December last year, claimed his employment was terminated because of his relationship status.
The business owners disputed this, arguing that Mak had trouble running the restaurant and had told them he was looking for work elsewhere.
The court agreed, citing a text message Mak sent to his boss that asked for a $5000 payout figure during his “final week” of work.
The former employee was unable to explain what he meant by the term “final week”.
Because of this, Judge Alexander Street said he found the applicant’s evidence to be “unsatisfactory”.
“I find that the reason why the applicant’s employment was terminated was because of the respondent’s concern as to his work performance, and it was not for any prohibited reason under the Fair Work Act,” Street said in his judgment.
As a result, the adverse action claim was dismissed.
Employment lawyer Peter Vitale told SmartCompany the business owner was successful in this particular case because the former employee did not produce credible evidence for his claims.
“The employee failed to put forward even the basic degree of evidence required to establish his case,” Vitale says.
“The evidence that his sexual orientation was the reason for his termination was considered unreliable by the judge because it seemed that he was trying to negotiate a payment to exit the employment in any event.”
Vitale says if a business owner has performance concerns about an employee, they should document their concerns along with what they have done to address the situation.
This is because in adverse action cases, the employer is the one that needs to prove they did not discriminate against the employee.
“If you have performance concerns with an employee, then it’s not just for reasons relating to unfair dismissal laws that you need to be careful about,” Vitale says.
“As this case shows, particularly with regard of the reverse onus of proof in adverse action cases, employers need to be in a position to demonstrate affirmatively what their reasons for the termination were.”
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