The Federal Court of Australia makes interim reinstatement orders to preserve the exercise of a prospective right to claim unfair dismissal

The case of Dabboussy v Australian Federation of Islamic Councils (link below) is summarised in this Alert and is a significant indicator of the Court’s preparedness to preserve the exercise of prospective rights by employees.  In this case, the right concerned the imminent ability to claim unfair dismissal on conclusion of a minimum employment period.  In the wake of the High Court’s decision in Qantas Airways Limited v Transport Workers Union of Australia (Qantas decision – link below) employers should take care in their decision making processes.

Background

The employee was employed in the position of CEO from 4 September 2023 until 3 September 2024 when he was summarily dismissed by his small business employer, following a complaint of sexual harassment against him.

The employer’s Executive Committee engaged an independent investigator to investigate the complaint.  Before the investigator’s report was finalised, the Executive Committee met to consider draft findings of misconduct and whether or not the CEO should be dismissed. The Executive Committee resolved to dismiss the CEO, if a final report maintained the draft findings.

The following day, the employer summarily dismissed the CEO – 7 hours short of the minimum employment period after which he would have been entitled to bring an unfair dismissal claim.  The CEO alleged this was a breach of the general protection provisions of the Fair Work Act – that reasons to dismiss him at that time included his prospective entitlement to bring an unfair dismissal claim.  The employer denied this allegation, relying on lawful reasons for dismissal, including the investigation material.

The Court’s Decision

The employee sought interim relief from the Court, including an order that the employer reinstate him (and then be prohibited from dismissing him) pending the final outcome of his general protections application.

The Court considered the timing of the Executive Committee’s meeting:

The evidence before me strongly suggests that the Executive Committee meeting was arranged with great haste at a time when [the investigator’s] report had not even been finalised, and after [the CEO] had already been stood down. There is no explanation on the evidence before me as to why it was necessary for the Executive Committee to meet for the purpose of considering what were at that stage said to be “draft findings” or how it was that [the President of the Executive Committee] (but not [the CEO]) came into possession of [the investigator’s] “draft findings”. In my view, there is a strong inference available that the Executive Committee was convened by [the President of the Executive Committee] for the purpose of facilitating termination of Mr Dabboussy’s employment before 4 September 2024, so as to deny him the opportunity to make a claim for unfair dismissal…’

The Court was persuaded that the CEO had established a prima facie case for interim orders.

In reaching this conclusion, the Court relied the High Court judgement in the Qantas decision:

… a person who takes adverse action against another person for a substantial and operative reason of preventing the exercise of a workplace right by the other person contravenes s 340(1)(b), regardless of whether that other person has the relevant workplace right at the time the adverse action is taken. Qantas did not avoid the operation of s 340(1)(b) in relation to its adverse action by taking the action prior to the existence of the workplace rights the exercise of which Qantas sought to thwart.

The Court granted the application for interim relief, ordering the CEO be reinstated, until further order. The Court also made orders to expedite the substantive general protections proceeding.

Key Takeaways

Employers must carefully consider their approach to governance and decision making, and be clear to act on lawful substantial and operative reasons for business decisions, including when it comes to decisions about individual employees and the potential for dismissal.

If an employer is motivated to prevent the exercise of a workplace right, the general protections provisions will apply, even if the employee does not yet have the workplace right, but may have the right in the future.

This is a complex area of employment law and employers should seek legal advice before acting, especially where decisions may impact on the exercise of workplace rights – this could include dismissals during a probationary period (or minimum employment period).

Dabboussy v Australian Federation of Islamic Councils [2024] FCA 1074

https://eresources.hcourt.gov.au/showCase/2023/HCA/27