A common misconception in general protections dismissal disputes is that an employer’s actions are defensible if the final decision-maker is unaware that the employee has made complaints or inquiries regarding their employment at the time of termination.
A recent decision of the Federal Circuit and Family Court of Australia (Division 2) is a timely reminder that in general protections matters, the Court may scrutinise the whole decision-making chain, including the role played by a line manager who makes a recommendation that the final decision-maker simply accepts.
In Kaur v Trustee for the Willow Wood Cranbourne Aged Services Trust (No 2) [2026] FedCFamC2G 1994 (12 October 2026, Judge Johns), the Court declared the employer contravened section 340 of the Fair Work Act 2009 (Cth) (FW Act) by dismissing an employee because she exercised workplace rights by making complaints and inquiries about her employment.
The decision highlights that where there is a ‘recommender’ and a ‘decision-maker’, the Court will seek to determine what is in each of their minds at the time they made their respective decisions to ensure that any prohibited reason motivating the ‘recommender’ has not infected the decision-maker.
Note: Relief and penalties were not determined in this decision and are being scheduled to be dealt with at a later date.
Background
The employer provides aged care across four facilities in Melbourne. The employee is a Registered Nurse who commenced part-time employment as a Residential Wellness Manager at the employer’s Cranbourne facility on 19 August 2024.
During her employment the employee made a series of complaints and inquiries via email to the Residential Manager at the Cranbourne facility (the employee’s line manager). The employer terminated the employee’s employment on 28 January 2025, approximately three weeks before the end of her six-month minimum employment period.
Upon termination, the employee brought:
- a general protections claim under section 340 of the FW Act; and
- an unlawful discrimination claim alleging dismissal because of her race, pursuant to section 351 of the FW Act (this claim was not made out and was ultimately abandoned).
The employee’s case centred on the argument that the complaints and inquiries she made during her employment, either singularly or in combination, led to her dismissal. She sought remedies in the form of financial compensation and the imposition of a pecuniary penalty.
During the proceedings, the employer maintained that the dismissal was due to performance concerns arising during the employee’s probationary period. These concerns were based on negative feedback and complaints received by the Residential Manager from the employee’s team leader and other employees regarding the employee’s performance and conduct.
The key issues
It was not disputed that the employee’s dismissal constituted adverse action under section 342 of the FW Act. Therefore, the main issue was whether a substantial and operative reason for the dismissal was the employee’s exercise of workplace rights. In determining this, the Court first had to decide which of the employee’s complaints and inquiries (if any) qualified as a “workplace right”.
What counts as a complaint or inquiry for general protections purposes?
Evidence tendered during the proceedings revealed that the six emails the employee sent the Residential Manager during her probationary period concerned a range of matters, including clinical governance levels, workload staffing and related work health and safety matters, and concerns about the conduct of other employees. One of the emails contained an inquiry about whether the employee was engaged on the correct rate of pay under the applicable enterprise agreement (the Pay Rate Email).
In determining whether any of the emails constituted complaints or inquiries within the meaning of the section 341 of the FW Act, Court considered whether the emails:
- expressed a ‘grievance’ or state of discontent or dissatisfaction with a matter relating to the employee’s employment for which some of sort of response, redress and or relief was sought (a ‘complaint’); and/or
- contained a request for information or the posing of a question in relation to the employee’s employment (an ‘inquiry’).
The Court rejected the employer’s argument that only the Pay Rate Email constituted a complaint or inquiry, and accepted that by the time the decision to dismiss the employee had been made, the employee had exercised workplace rights by sending three emails that contained complaints about staffing and related work health and safety matters and one email that contained an inquiry (the Pay Rate Email).
Importantly, the Court also rejected an argument that some of the complaints were not genuine or were not made in good faith. The Court accepted that even if an employee is wrong in their underlying assumptions about the relevant issue, or even factually incorrect, that does not necessarily mean the complaint is not genuine or not made in good faith.
How can an employer discharge the reverse onus of proof?
Once the adverse action and the existence of prohibited reason had been established, the Court then turned to whether the employer had discharged the section 361 presumption that the adverse action was taken for the prohibited reason.
The Court emphasised the well-known principle that an employer will often meet the burden or the reverse onus of proof by proving what did motivate the decision, because proving what did not motivate a decision is inherently difficult. So, an employer can rebut the presumption by demonstrating the adverse action was taken for an “innocent” reason (for example, by establishing that there were performance reasons).
However, the Court made it clear that broad statements such as “performance issues” are insufficient without persuasive evidence of the true substantial and operative reasons. This requirement is particularly important when multiple individuals are involved in the decision-making process.
When prohibited reasons ‘infect’ the decision-making process
In identifying the substantial and operative reasons for the dismissal, the Court considered the not uncommon situation where a final decision-maker relies on the opinion or recommendation of another person (the ‘recommender’) who may be closer in reporting line to the employee in question.
After considering all of the evidence, the Court found it was likely the Residential Manager (the recommender) allowed one or more of the complaint or inquiry emails to affect her reasoning process, and that the Executive People and Culture Manager (the P&C Manager) who was the final decision-maker had relied almost exclusively on the opinion of the Residential Manager about the issues with the employee’s performance to make the ‘final decision’ regarding the employee’s dismissal.
As such, while the Court accepted that the employer had discharged the reverse onus in respect of the P&C Manager’s own mental state and accepted that she was unaware of most of the complaints and inquiry emails the employee had sent the Residential Manager leading up to the termination, it was not persuaded that the employer had discharged the onus in respect of the Residential Manager whose recommendation materially influenced the dismissal.
The Court also noted that when the employer did not investigate the issues or provide the employee an opportunity to respond before terminating, it was left with an “unease” about the recommender’s true motivations. The Court found that the Residential Manager’s reasons for termination – including prohibited reasons – had ‘infected’ the ultimate decision.
Practical takeaways for employers
- Employers may not avoid liability in a dismissal-related general protections dispute by relying solely on the final decision-maker’s state of mind.
- If the final decision-maker does not test or verify what they are being told, a recommender’s prohibited reasons can “infect” the decision.
- Workplace complaints and inquiries can be broad in nature, and a complaint can still be genuine even if the premise is factually incorrect.
- Investigation and procedural steps are important. A lack of investigation (where otherwise appropriate) or an absence of opportunity to respond to performance or conduct issues can undermine the employer’s ability to prove the true reasons for dismissal.
- To rebut the reverse onus, an employer should be able to clearly articulate and evidence the substantial and operative reasons for the termination, including in relation to any key person/s involved in the decision-making chain.
Need advice about general protections risks?
If you’re managing an employee who is raising complaints, or you’re considering termination during probation, it’s critical to understand the additional risks posed by the FW Act general protections regime and the reverse onus of proof.
If you would like advice about how to manage general protections or other termination related risks, please contact Emplawyer.
