The importance of documentation to prove why adverse action is taken

When a claim is made under the general protections provisions of the Fair Work Act 2009 (Cth), the Fair Work Commission or a court will presume that you took the adverse action for the prohibited reason, as alleged, unless you can prove otherwise. The evidence you have to prove why you took a particular course of action that had an adverse impact to one or more employees is critical. This evidence may conversely lead to the conclusion that the action was taken for a prohibited reason. We see both sides of this coin in general protections cases regularly.

One case in particular – Transport Workers' Union of Australia v Qantas Airways Limited (2021) – still holds up today as a clear demonstration of how documents like file notes and emails can be used as evidence of why adverse action was taken.

This case was in relation to claims made by the Transport Workers’ Union against Qantas Airways associated with the outsourcing of ground-handling operations work at 10 Australian airports to third-party ground-handling companies, which resulted in more than 2,000 jobs being made redundant.

The Court observed that when determining contested factual issues, what matters most is usually notes and documents that were produced when the decisions were made. These are more valuable than witness statements or witness evidence at the trial.

Of course, it may be possible to claim legal professional privilege to prevent some of the documents being disclosed. This will be the case if the dominant purpose for the creation of the document was to give or receive professional legal advice. However, the claim of privilege is not without risk.

In the Qantas case, the employer claimed legal professional privilege over the content of the extensive communications in the period leading up to and coinciding with the outsourcing decision. The very early involvement of lawyers suggested to the Court that there was an awareness that any business record created may end up before the courts. However, that led to the Court questioning the credibility of some of the non-privileged documents created at this time, noting that authors of documents or discussions often communicate more freely if they consider their comment is going to be kept confidential.

Ultimately, the Court found the employer took adverse action when it made more than 2,000 workers redundant after it failed to prove its reasons for doing so weren’t prohibited.

This case highlights just how important your documentation of the decision-making process is! This is vital to appreciate for managers and human resources advisers who are involved in decisions about organisational change, restructuring or disciplinary matters. Email exchanges, notes and other records of conversations will likely be required to be ‘discovered’ in the litigation and made available to the parties and to the court.

You can find out more on general protections claims and how to prove adverse action was lawful – including cases in which other businesses did just that – in the Employment Law Handbook chapter, General protections – adverse action.

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