A recent decision of the Federal Court of Australia (‘FCA’) has reaffirmed the importance of record keeping from recruitment through to dismissal. In particular it has highlighted the fundamental role of employment records in a successful defence against an adverse action claim.
Employers should be particularly mindful of the reverse onus of proof that operates in the general protections jurisdiction that requires the employer to displace the presumption that the action was taken, or decision was made for an unlawful reason. In such instances the court will presume that the employer’s conduct was taken for a reason prohibited by the provisions unless the employer can prove otherwise. It is for this reason that employer should keep relevant documentation relating to any ‘adverse action’ taken against employees in order to prove that the action was not taken for an unlawful reason.
In Shizas v Comissioner of Police  FCA 61, Justice Katzmann considered whether two seperate decisions of the Australian Federal Police (‘AFP’) to refuse to employ Mr Shizas (‘the Applicant’) as a police officer were made on the basis of his disability in contravention of section 351 of the Fair Work Act 2009 (Cth) (‘FW Act’) and, if so, whether the decisions were made because of the inherent requirements of the position, which would invoke the defence to an adverse action claim pursuant to section 351(2)(b) of the FW Act.
The AFP’s refusal to employ the Applicant as a police officer in March 2013 received particular attention, given the difficulty the FCA had in determining who made the decision not to employ the Applicant and on what basis.
The Applicant satisfied the FCA that the AFP refused to employ him and that at such time the Applicant had a disability within the meaning of the FW Act (being a musculosketal disorder, ankylosing spondylitis). This invoked the onus on the AFP to establish that the two facts were not linked, that is, it did not refuse to employ the Applicant because of his disability.
With respect to the first decision to refuse to employ the Applicant, the AFP was not able to adduce evidence to demonstrate unequivocally who made the decision. As a result, the AFP was not able to specify why the decision was made. Accordingly, the AFP was unable to displace the presumption that its refusal to employ the Applicant was because of his disability or that the reason was that the Applicant could not perform the inherent requirements of the role of a police officer.
Following the first refusal, Mr Shizas lodged a complaint of disability discrimination with the Australian Human Rights Commission. Following this, the Assistant Police Commissioner (‘the Commissioner’) sought independent medical advice, on which he purported to make the AFPs second decision to refuse to employ the Applicant in July 2014. In this regard, Justice Katzmann held that, even though the Commissioner misunderstood the independent medical advice and incorrectly determined that the Applicant could not perform the inherent requirements of the position, section 351(2)(b) of the FW Act requires consideration of the actual reasons of the decision maker. Accordingly, an honestly held mistaken belief that the Applicant could not perform the inherent requirements of the position was sufficient to satisfy the exception.
This decision demonstrates the importance of proper record keeping during interview and pre-employment processes and is a reminder that employers owe certain obligations to prospective employees. More broadly, employers should ensure all employment related decision making processes are well documented.
Some best practice tips to mitigate the risk of a successful adverse action claim:
- In circumstances where a prospective or current employee may not be able to perform the inherent requirements of their (or a prospective) position seek independent medical advice and rely on the same.
- Take contemporaneous file notes during all decision-making processes from recruitment processes to disciplinary meetings and complaint handling.
- Ensure such file notes particularise reasons for decisions and name any other persons present at meetings or involved in any decision-making process.
- Ensure managers, human resources staff, and all employees with decision making authority are trained appropriately and are cognisant of the risk of a general protections claim and the circumstances that may give rise to the same.
If you have any questions about adverse action claims or sufficient record keeping, please do not hesitate to contact Nick Stevens, Megan Cant or Jane Murray.