Understanding the Case
In a significant previous ruling, Macquarie University was found to have breached the Fair Work Act 2009 (Cth) (the Act). The violations revolved around the termination of an employee due to her complaints about a direct report. Not only did the University unjustly terminate her, they also failed to reassign her to any available roles. It was clear to the court that the university’s actions were motivated by the employee’s complaints, thereby amounting to a breach of the relevant Enterprise Agreement.
Following the initial judgment in favor of the victimized employee, the court further evaluated possible remedies. This subsequent decision offers valuable insights into the factors a court may consider when deciding on the most fitting reparations in a general protections case.
The Question of Reinstatement
A key takeaway from the court’s decision is that the nonexistence of the employee’s former position does not automatically rule out reinstatement. Despite this, the court chose not to reinstate the employee. This decision was influenced by several factors, including accusations of the employee being ‘detrimental to team environment’, potential stress on returning to work at the University, and the implications of the ongoing COVID-19 pandemic.
The court was meticulous in determining the fines against Macquarie University. Key considerations included the University’s size, its HR capabilities, the absence of ‘remorse’ shown due to their vigorous defense, the implementation of ‘corrective measures’ in their restructuring and redeployment processes, and the necessity for a deterrent for employers. The university was ultimately fined $45,000, which was granted to the aggrieved employee.
Compensation for Lost Wages
While deliberating compensation for the lost wages, the court was mindful of the fact that the employee had actively sought to mitigate her loss by job-hunting. Personal finances were ruled out as a consideration, and the University’s claim that the employee ‘would have been made redundant and terminated anyway’ did not affect the compensation amount. The court stressed the speculative nature of the claim, emphasizing the potential for redeployment in a department that didn’t undergo restructuring. The aggrieved employee was awarded over $276,000 in lost wages compensation, inclusive of superannuation, with an adjustment for tax implications due to the one-time payout.
Compensation for Future and Non-economic Loss
The compensation for future economic loss amounted to $278,282, considering the repercussions of the COVID-19 pandemic on this economic sector. In addition, the court awarded $15,000 (plus interest) to the employee for non-economic loss. The intense distress experienced by the employee due to the termination and court proceedings, as well as the medical evidence linking the termination to a mental health issue, were considered. Importantly, the court stated that any disproportionate reaction on the part of the employee does not absolve the University from blame for her psychological conditions.
The Final Tally
In total, the compensation payable to the former employee exceeded $600,000, highlighting the high cost of breaching the Fair Work Act’s general protection provisions. Employers are strongly advised to familiarize themselves with these provisions to avoid such consequences in the future.
Call Frontline Employment Defenders Now so we can help if you have been bullied or unfairly dismissed on1300 089 353 or visit https://www.fled.com.au