An employee for a security services company was subjected to ongoing swearing and racist comments by his manager.

When the manager asked him “what have you achieved today c*unt?” the employee left the meeting. He sent an email to the manager stating “Just a quick note to remind you that my name is Joe or Joseph …. It is not c*unt..”.

Five months after the employee made the complaint, he was dismissed. The employer claimed the dismissal was due to the employee’s performance. The employee contended the dismissal was due to his complaint about the swearing. He filed an adverse action. The Federal Circuit and Family Court found that the employee’s complaint about the swearing was a substantial factor in the decision to terminate him.

The Court held that there had been adverse action against the employee and awarded the employee $93,500 for economic and non-economic loss.

Take Out Point: Respondents in adverse action claims, like the employer in this case, need to meet the reverse onus and prove that adverse action was not taken for a reason prohibited by the Fair Work Act.

See: Noonan v XYZ Security Services Pty Ltd

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