Court Orders Temporary Reinstatement of Employee Pending Adverse Action Claim

Probation periods give employers time to assess whether an employee is suited for long-term employment. If aligned with the Fair Work Act 2009 (Cth) (FW Act) minimum employment period, this period allows an employer to end employment before an employee gains protection from unfair dismissal claims. However, a recent Federal Court decision is a reminder that dismissing an employee too close to the end of their probation period could still risk breaching the general protections provisions of the FW Act.

In Dabboussy v Australian Federation of Islamic Councils [2024] FCA 1074, the Court reviewed an application from the recently dismissed CEO of the Australian Federation of Islamic Councils (the Employer) who sought urgent reinstatement to his role.

The employee was dismissed at 4:40 pm on 3 September 2024, just hours before he would have completed the minimum employment period on 4 September 2024, which would have allowed him to make an unfair dismissal claim. His dismissal followed an investigation into a complaint of sexual harassment, where he allegedly made an inappropriate comment to his executive assistant. The final report confirming the substantiation of these allegations was received on the day of his dismissal.

The employee argued that the timing of his dismissal was designed to prevent him from exercising his right to bring an unfair dismissal claim, thereby breaching the FW Act’s general protections provisions, which prohibit taking adverse action against an employee to prevent them from exercising a workplace right.

Based on the timeline and circumstances, the Court found the employee had a “prima facie” case that the Employer may have breached these protections. The Court weighed the potential harm to both parties and decided the employee’s financial hardship and the risk of losing his family home outweighed any inconvenience to the Employer. To address workplace discomfort, the Court suggested the Employer could stand him down or allow him to work from home until the case is fully resolved.

As a result, the Court temporarily reinstated the employee and prohibited the Employer from dismissing him without Court approval, pending a final hearing scheduled for February 2025.

Takeaways for Employers

This case highlights that dismissing an employee within the minimum employment period still carries some risk if it appears to be adverse action. Employers should review and address an employee’s suitability well before the end of the minimum employment period and document performance or conduct issues early and thoroughly.

Note: This blog is not legal advice and should not be relied upon as such. Workplace Law disclaims liability for any loss or damage resulting from reliance on this blog’s content.