Published 27 June 2016
The Federal Court of Australia set aside an order made by the Federal Circuit Court after finding a recommendation to not continue the employment of a Prison Officer in Training constituted adverse action.
Perez accepted a temporary position as a prison officer in training on a fixed-term contract.
Perez claimed he had been harassed and victimised by staff in relation to an incident where he allegedly placed both himself and other prison officers at risk by entering a maximum security section alone where prisoners had previously engaging in threatening behaviour. Perez denied this assertion and wished to see the CCTV of the incident. This footage had been taped over in accordance with protocol.
Perez was required to undergo a performance appraisal as part of his training. Adeyemo, his appraiser, criticised Perez on a number of counts. Perez reacted negatively to this criticism and Tunney, a chief prison officer, organised a meeting with Perez based on his ‘unusual’ response and performance issues raised by other officers.
Perez claimed he had developed depression and anxiety from work at the correctional facility and took sick leave. He was unable to return to work in the main prison facility due to anxiety and instead worked in an area of low security. Yan decided to suspend Perez, concerned he would sustain further harm.
On expiry of his 12-month contract, Perez’s employment was not continued. It was agreed by the Department in evidence that a prison office in training could expect to be appointed to a prison officer role at the conclusion of their 12-month contract and completion of their Certificate III.
Perez sought compensation based on alleged adverse action by his employer; however these were rejected by the Federal Circuit Court of Australia (FCC). Perez sought an appeal by the Federal Court of Australia as he believed the Judge should have found adverse action in regards to the following:
- Tunney and Bell’s formal performance management action against Perez
- Andrews and Brown’s contribution and Adeyemo, Tunney, Yan and Ballantine’s passive contribution to destroying CCTV footage requested by Perez in relation to an incident mentioned in his performance appraisal
- Andrews’ recommendation that the employment contract of Perez not be continued
- Yan’s indefinite suspension of Perez
Decision
The Court believed the FCC Judge had been correct in concluding the performance review meeting did not constitute adverse action, as Perez’s reaction to his appraisal was ‘unusual’ and his difficulty in responding constructively to criticism was the reason for the review meeting. Further, Perez claimed the performance review meeting would affect his employment as it would be recorded on his personnel file; however there was no evidence suggesting this occurred. As such, the Court found the appeal failed on this ground.
The Court ruled the “spoliation” of the CCTV footage requested by Perez did not constitute adverse action. The Court found Perez had no entitlement to view the CCTV image, however even if he had, it was not denied to him as the relevant section was reviewed by Ms Andrews in her investigation of the matter and later by the Judge at trial. In addition, the footage was taped over in accordance with protocol and there was no evidence it was taped over out of an alleged conspiracy to discredit him. Consequently, this ground of the appeal failed.
The Federal Court found Ms Andrews’ recommendation that Mr Perez’s employment not continue did constitute adverse action. Her recommendation was capable of undermining the expectation that Perez would complete his Certificate III and be appointed as a prison officer and therefore could have injured his employment. Significantly, the Court held that the Department had not discharged its onus under section 361 of the Fair Work Act in relation to this claim. It had not even provided any evidence that the recommendation had not been made due to Perez exercising his workplace rights to make a complaint. In response, the Court found this part of the appeal succeeded. The FCC Judge had failed to make a determination on this issue.
The Court found Perez’s claim that he was suspended based on “mental disability” was overlooked because Perez had not referenced this in his closing submissions. Although it was noted that Perez had represented himself at the trial.
The Court found Perez’s claim that the FCC Judge was biased was unsubstantiated, believing ‘the fairminded observer would not have had any apprehension that the judge had some preconceived view about the merits of the appellant’s claims’.
The Court allowed the appeal in part and set aside the orders made in the FCC. The case was remitted to the FCC to consider whether relief should be granted in respect to the adverse action of Andrews’ recommendation and whether Perez’s suspension constituted adverse action.
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