General Protection Claim – Myer proves dismissal NOT linked to workplace right or to gender
In the decision of Vukovic v Myer Pty Ltd  FCCA 985 (2 June 2014), a Myer sales manager, Vukovic, who did not disclose he had an anxiety condition to his employer, or make any plan to seek workers compensation, has failed to argue that these were the real reasons for his dismissal, rather than concerns with his performance.
The sales manager, Vukovic, was employed at the North Ryde Myer’s store from April to June 2013. Vulovic was advised that he was being dismissed within his three (3)- month probationary period because of his apparent disengagement at several internal staff events, unsatisfactory customer performance, and his failure to take notes and follow up concerns raised during regular inspections of his departments.
Vukovic, however, alleged that Myer dismissed him because of ongoing panic attacks he had been experiencing at work, the physical symptoms of which, he believed, would have been apparent to his managers and colleagues.
Vukovic argued in the Federal Circuit Court that, because his anxiety condition qualified as a disability and would have meant he had a workplace right to seek compensation, Myer had taken adverse action against him when it sacked him.
Judge Cameron dismissed Vukovic’s General Protections claim, finding that Myer management had been able to show that the concerns which led to Vukovic’s dismissal related to “performance of his duties and were quite unrelated to any workers compensation rights he might have had“.
Judge Cameron said that the script that his store manager read from when notifying Vukovic of his dismissal “recorded the bases” for the dismissal and that none of the issues raised reflected a concern that he suffered from an anxiety condition, which Vukovic conceded he had not disclosed.
In addition, Judge Cameron found there was no evidence that Vukovic intended to pursue a workers compensation claim.
His Honour also rejected a further allegation that Vukovic had been dismissed because he was male, and accepted Myer’s evidence that while some female employees had complained that he had been looking at their breasts, his explanation that he was checking their name tags to make sure he got the right names was “accepted as an adequate explanation and the issue did not arise again”.
It is apparent that an employee can raise virtually any issue of concern that has some loose and indirect connection with their employment, and rely on that as a workplace right in an adverse action claim under Part 3-1 the Fair Work Act.
However, this does not mean that an employer cannot appropriately and fairly manage employees’ performance and conduct and make decisions to discipline or dismiss, when such complaints have arisen.
The critical issue for an employer is being able to explain, justify and defend the decision making process through clear evidence.
The employer should consider these issues:
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