Sunnyvale, CA -- (SBWIRE) -- 05/18/2012 -- A federal court ruling involving employee termination in Australia demonstrated that following the right procedures and maintaining proper records related to long-term employee issues including workplace rights and absence from work, can protect the employer when facing an adverse action claim.

In Eriksson v The Commonwealth [2001] FMCA 964, a federal magistrate ruled in favour of the employer (Department of Health and Ageing) in determining whether the termination of an employee’s employment constituted adverse action.

Background to Eriksson v The Commonwealth [2001] FMCA 964 
Meeli Kersti Eriksson working for the Department of Health and Ageing suffered work related injury in 2002 and was certified as unfit for work from December 1, 2006. After futile attempts to restore employment, the employer wanted to retire the employee under medical invalidity grounds by obtaining an invalidity Retirement Certificate from the Australia Reward Investment Alliance (ARIA), which was granted in 2007.

Subsequently, the employee was notified that she would be terminated under section 29(3) (d) of the Public Service Act 1999 (CTH) (PS Act). Following the notification, the employee requested the employer to reconsider the decision and the employer delayed the termination by allowing her to present new evidence on three occasions. The employee failed to provide new evidence and was subsequently terminated. Post termination, the employee made an adverse action claim to Fair Work Australia pursuant to the Fair WorkAct 2009 (CTH) (fW act).

Judgement
The federal magistrate dismissed the employee’s claim on the grounds that the termination decision preceded the workplace rights related actions taken by the employee and the employee was also notified about the decision in early 2007.

Implications:
- Organizations in Australia must follow termination procedures and policies with regard to employee notification and recording management decisions related to the issue.
- Employment decisions should be made for reasons unrelated to what might be claimed to be a workplace right.
- Evidences of employee management decisions taken as well as the reason, for which they are taken, should be recorded.

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