King & Wood Mallesons

Asia-Pacific 100 position: 3

RMIT ordered to reinstate redundant academic

By Angela Weber

In this decision, recently retired Justice Gray of the Federal Court of Australia found that the selection of an academic for redundancy was unlawful adverse action and that RMIT had undertaken the redundancy process as a ‘pretext for getting rid of an undesired employee’.

This case highlights two things: first, the importance of those involved keeping clear contemporaneous records around redundancy processes and decisions. This will assist in defending any adverse action (and other) claims around the redundancy; and second, the standard required for an employer to discharge the reverse onus of proof when an adverse action claim is made. In Justice Gray’s view, an employer must provide evidence not only as to the real reasons for the decision, but must also directly answer the employee’s allegations. The employee’s allegations need to be directly put to the decision-maker and positively denied.

Relevantly in this instance: section 340(1) of the Fair Work Act 2009 (FW Act) prohibits a person from taking adverse action against another person because the other person had a workplace right, has or has not exercised a workplace right or proposes or proposes not to exercise a workplace right. Among other things, a workplace right includes the ability of an employee to make a complaint or enquiry in relation to his or her employment…

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