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Between a rock and a hard place

TerminationJanuary 7, 2015

Between a rock and a hard place (Last Updated On: November 21, 2016)
Case study: Evans v Trilab Pty Ltd (2014)

Not every hire is a success. Letting staff go when they don’t meet expectations during probation period is something that happens all the time, and normally without incident. Most business owners also feel probation periods are a safe time to dismiss staff as employees can only claim unfair dismissal after they’ve worked at a company for a specified period of time.

However, did you know that employees can bring adverse action claims against you from the moment they step through the door?

Under the Fair Work Act, there is no minimum employment period that a worker must serve before they are entitled to protection from adverse action. In other words, a worker is entitled to make a claim from the first day that they are employed or, in some circumstances, even before the employment relationship has commenced.

A good example of this is the recent case of Evans v Trilab Pty Ltd (2014). Hayden Evans was employed as a State Manager in Engineering by Trilab Pty Limited in Perth, a company that conducts soil and rock classification testing.

At the start of his employment, Mr Evans raised concerns with senior staff on the company’s testing methods. Mr Evans insisted that a different method should have been used to ensure compliance with Australian testing standards. Mr Evans was directed by the Chairman of the Board of Directors to use the company’s testing methods and to stop telling other staff that their methods were wrong.

Another meeting took place four days later where the Chairman informed Mr Evans that his employment was to be terminated on the grounds of his performance and refusal to adopt the company’s testing methods. Mr Evans was formally dismissed a mere three weeks after starting at Trilab.

Mr Evans filed a claim for adverse action alleging that he was dismissed because he had exercised his workplace right to make an inquiry. The employer argued that Mr Evans had been terminated solely for performance issues during his probation period.

The employer also asked the Court to dismiss the application on the basis that Mr Evan’s inquiry was not capable of constituting a workplace right. If it did, any dismissed employees can cite a complaint or inquiry they have made as grounds for an adverse action claim.

The Court found that it was arguable Mr Evan’s inquiry was in relation to his employment and therefore determined that his claim should be decided at hearing.
Although the final decision in this matter is yet to be made, this case serves as a useful reminder that employers are still liable to prosecution even in circumstances where a worker has only been employed for a few weeks.

What does this mean for employers?
  • Employers need to exercise caution when making the decision to terminate employees during probation periods. As this case demonstrates, dismissing an employee well within the probation period can still result in costly legal action for employers
  • Employers need to be able to explain and defend decision making processes leading to dismissal, during the probation period, in order to demonstrate any action taken against an employee was based upon legitimate reasons

For more information on adverse action, contact Employsure on 1300 651 415 and ensure your company is protected against unwanted adverse action and unfair dismissal cases.

Caroline Pellow, Claims Adviser

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