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17 January 2020

Last call

Employment Law
Federal

Asked

Employment - General protections dismissal

I am acting for an employee who is unable to make an unfair dismissal claim as the employment duration was only a few months. I would like assistance to determine if a general protections claim would be an option.

My client received daily harassment calls at work from a third party who was attempting extortion. This was reported to the police.

My client was dismissed by the employer who said that the phone calls had made the position of employment untenable and the reception staff were sick of taking the calls. The employer was made aware that my client had reported the calls to the police.

Is this dismissal lawful?

Answered

Thank you for the question.

Based on the facts provided, there does not seem to be an obvious right under s 340 and s 341 of the Fair Work Act 2009 – the general protections laws – that has been breached by the dismissal; and, if so, it is not obvious that the dismissal was ‘because’ of that right.

However, it may be possible to bring the employer before the Fair Work Commission in order to seek an agreed resolution, such as having the dismissal changed to a resignation and the employer making a compensatory payment.

Under the NSW Work Health and Safety Act 2011, the employer has a primary duty of care to ensure, so far as is reasonably practicable, the health and safety of workers. A worker’s health includes their psychological health.

Under s 340 of the Fair Work Act an employer must not take adverse action against an employee because that person has a ‘workplace right’. Section 341 provides that a person has a ‘workplace right’ if the person is entitled to the benefit of a workplace law. The Work Health and Safety Act is a workplace law for the purposes of s 341 of the Fair Work Act.

It may be open to argue that:

  • The employer, knowing that the employee was subject to harassment and stalking at work, had a work health and safety obligation to ensure that its work health and safety systems protected the employee from a risk to their psychological health caused by the harassing caller.  
  • The employer failed in the duty by dismissing the employee who was blameless in the circumstances.
  • The employee had a workplace right.
  • The employer engaged in adverse action by dismissing the employee because the employee had a workplace right or were prevented from the exercise of a workplace right.

Regards

Mentor