How Old is too Old? The relevance of older workplace complaints

In our third article in the series looking at recent adverse action cases, we consider a case where the employee alleged her termination was related to a complaint she lodged some years earlier.

In Hansen v Mt Martha Community Learning Centre Inc [2015] FCA 1099, a childcare centre coordinator was involved in an altercation with an employee who she supervised. The emotionally charged incident, which included raised voices and the coordinator physically pushing the employee, resulted in an external workplace investigation. The investigator found that four of the ten allegations against the coordinator, of bullying and harassment, were substantiated and the decision was taken by the employer to terminate the coordinator’s employment.

The coordinator subsequently brought a claim under the General Protections provisions alleging that she was suspended and later dismissed because of a complaint, about a completely separate matter, that she had made approximately two years ago. The Applicant felt her original complaint had never been adequately responded to or resolved although nothing further had come of it.

The matter was heard by Justice Jessup in the Federal Court who held that the coordinator’s termination had no connection to her earlier complaint and that the adverse action claim was not made out. In a detailed analysis of the facts, which included the differing versions of events, Justice Jessup concluded that the altercation between the coordinator and the other employee was sufficiently serious to warrant summary dismissal and that there was no connection to the complaint made by the coordinator some two or more years earlier. The general manager who made the decision to terminate was in fact unaware of the earlier complaint against him and thought the matter to which it related had been resolved shortly afterwards.

Lessons for Employers

In this case the complaint was found not to have a connection because of a number of factors. The decision-maker thought the matter was resolved a long time earlier, the decision-maker was unaware of the written complaint relating to the matter until the present proceedings and the reason for the termination was quite obvious without any reference to the earlier issue. It is possible to envisage that older complaints may still be relevant in certain circumstances particularly if there is evidence to show continued engagement with the subject matter over time.

The other aspects worth noting are the role of the external investigation and that of the decision-maker. The employer in this case outsourced the investigation of the bullying and harassment complaints. If workplace issues arise that are, or are likely to become, complex an external third party investigator can be a constructive way to manage the situation and help ensure objectivity and impartiality.

Employers should also consider who the effective decision-maker(s) are in decisions around termination. It is important to consider whether the decision-maker has a history or connection with the employee being dismissed that may if it is later analysed present a problem.


Sarah Waterhouse





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