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Unreasonable performance targets contribute to successful adverse action claim

The Fair Work Commission has recently found that an employer had taken adverse action against its employee when it unilaterally imposed unreasonable performance targets.

The employee was employed by a real estate agency in a number of roles throughout her employment.

In May 2014, the employee began what became a long health related absence, which included annual leave, personal leave and a rejected WorkCover claim. When the employee returned to work in November 2014, the employee experienced a number of changes to her role, including changes to her ‘performance expectations’ where her sales targets were increased significantly.

She was also subject to restrictions in terms of the employer’s consent to her attending union meetings (where she had previously been paid to attend). The employee resigned as a result of these changes and commenced an application on the basis that the employer had taken adverse action against her because of her absence and her role as president of the relevant union.

Commissioner Wilson said that the employer failed to disprove that the actions taken against the employer were not for the reasons she alleged, stating:

There has been no adequate explanation from [the Employer] for the changes to her working arrangements or the people she used to supervise. … She demonstrably was returning from a significant period of illness, and was no doubt still emotionally fragile and lacking resilience. [The Employer] has not explained plausibly what its motivations were for its decisions, or why improbable and unreasonable targets should be unilaterally imposed on her, at the same time as her duties were significantly changed.”

The employer was ordered to pay more than $20,000 in compensation, including $3,000 for hurt and humiliation.

Implications for employers: In this case, the employer could not offer the Commission any plausible explanation for the changes in the employee’s role. Where such changes are made off the back of an extended period of sick leave or where they involve a union delegate, it is imperative that employers be able to evidence reasons to justify the changes in order to discharge the onus of proof.

Lisa Aitken is an accredited specialist in workplace relations law and the principal of Aitken Legal, a law firm specialising in employment law for employers. The information in this column is intended as a guide only.  Liability limited by a scheme approved under professional standards legislation.