Home' HR Monthly : March 2019 Contents March 2019 HRM magazine 35
n employee who hasn't worked for
the statutory minimum period of
employment (generally six months)
cannot bring an unfair dismissal claim. So when
dismissing a new hire, many employers take
the view that they don't need to docu ment their
reasons. But caution should be observed because
staff terminated du ring this period can bring
general protections/adverse action claims.
The relevant issues were considered in the
recent decision of Pacheco-Hernandez v Duty
Free Stores Gold Coast Pty Ltd.
Du ring the first six months of her employment,
Escarle Pacheco-Hernandez provided a
statement to Duty Free Stores in support of
another employee's workers compensation claim
and made a number of complaints about her
working conditions during her employment.
These complaints were recorded in three emails
sent to senior officers, and related to allegations
she was being requested to perform jobs not
in her job description, was being bullied, and
that the rotating roster left her exhausted and
created work health and safety concerns.
Less than one month after she made the
third of her complaints (and during the first six
months of her employment), senior Duty Free
employees met with Padecho -Hernandez to
inform her she was being dismissed.
Federal Magistrates' found that in the
termination meeting, Pacheco-Hernandez asked
why her employment was being terminated and
Duty Free Stores refused to provide reasons,
stating, "we are not legally obligated". The
termination letter she recieved later that day
also did not contain reasons.
A new decision sheds light on how HR
should approach terminating employees
during the probationary period.
BY ABRAHAM ASH, TIMOTHY GRELLMAN AND
NADINE HOLTERMAN, CLAYTON UTZ
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Following her dismissal, Pacheco-Hernandez
lodged a general protections application,
alleging that she was dismissed by Duty Free
Stores because she exercised workplace rights.
Section 340 of the Fair Work Act prescribes
what constitutes unlawful adverse action. A
reverse onus of proof applies in proceedings
brought under this section. So if adverse
action and the exercise of a workplace right is
established, it is presumed adverse action was
taken, unless the respondent proves otherwise.
Duty Free Stores argued that Pacheco-
Hernandez was dismissed because "she was
not the right fit for our business". However, the
court found Duty Free Stores did not satisfy
the onus of proof. It noted the high level of
'generality' of the evidence of Duty Free Stores
regarding its stated reasons, and found it may
have determined Pacheco -Hernandez was not
the right "fit" because she made the complaints.
Duty Free Stores provided insufficient evidence
to show the behaviour of Pacheco -Hernandez
which led it to determine she did not "fit within
The court was satisfied that Pacheco-
Hernandez had established that Duty Free
Stores contravened the general protections
provisions by dismissing her "because" she
exercised workplace rights. She was awarded
$8,263 in compensation.
The inference from the court's reasoning is
that the failure to provide a reason to Pacheco-
Hernandez gave her leeway to assert that the
reason must have been unlawful.
The takeaway is that although employees
terminated during the statutory minimum
period of employment (or probationary periods)
do not have unfair dismissal access regardless
of the reasons for termination, the court's
reasoning demonstrates the risk for employers
not providing a reason, even if the reason might
be unpalatable to the employee.
If an employer does not provide clear lawful
reasons for the dismissal at the time, it may be
difficult as a matter of evidence to displace the
onus of proof where it is alleged the termination
was taken for unlawful reasons.
If exceptional circumstances exist that make
it desirable not to give reasons, it will likely be
best to keep contemporaneous notes recording
the lawful reasons for the dismissal, as these
notes may form evidence if adverse action
proceedings are commenced.
So if there is a risk of an adverse action /
general protections claim, termination letters
(even during a probationary period) should, in
most cases, articulate the lawful reasons for an
employee's dismissal. •••
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