A teacher resigned from the school, after a meeting with the principal. She later claimed that she had been forced to resign because she had filed a bullying complaint against the principal.
The teacher then brought proceedings for 'adverse action' against the school in the Federal Court.
Most significantly, she sought an interlocutory injunction (that is, a temporary injunction pending the final hearing) reinstating her to the school and maintaining her employment there while the case was being heard.
In a decision handed down in late October 2011, Justice Marshall of the Federal Court refused the teachers application for the interlocutory injunction.
What does it mean?
The 'adverse action' provisions prohibit (amongst other things) an employer dismissing an employee because they have exercised a workplace right – including filing a grievance.
A court can grant an interlocutory injunction pending trial – effectively holding the employee in their employment until the final decision is made.
The court will grant such an injunction if both:
- there is a serious issue to be tried (which is a relatively low threshold – the employee does not need to prove their case)
- the balance of convenience is in favour of granting the injunction (that is, the ill effects of refusing an injunction would be greater than the ill effects of granting it).
Justice Marshall concluded that the teacher had established a serious issue to be tried – but the balance of convenience was against granting the injunction. This was because:
- the proceedings could be heard urgently at the end of November 2011
- this urgent hearing meant that – if the teacher was reinstated – this would be in time for the 2012 school year
- the teacher had been paid her salary up to 26 December 2011 – the 3 month notice period.
Why is it important?
This case is illustrative of a general trend – employees
- bringing proceedings for adverse action, asserting that the real reason for their dismissal (or threatened dismissal) is that they filed a grievance (as opposed to poor performance or the ostensible reason for their dismissal); then
- either seeking, or threatening to seek, an interlocutory injunction holding them in employment.
Importantly, the adverse action provisions are one of the few ways an employee can obtain an interlocutory injunction preventing their dismissal (or reinstating them).
If an employee obtains such an injunction, it can be major problem for an employer and significant bargaining chip for the employee.
While the teacher was unsuccessful here, employers cannot take too much comfort from the decision. Much of the decision turned on the proximity of the final hearing; the fact that the teacher had been paid until a month beyond the final hearing and the nature of the school year.
What should I do?
You need to be very conscious of the 'adverse action' provisions – especially when considering disciplinary action against an employee who has also made a complaint.
Want more information?
Click here for the decision - McCulloch v Preshil, The Margaret Lyttle Memorial School  FCA 1218