Han v St Basil's Homes [2023] FCA 1010

Han v St Basil's Homes [2023] FCA 1010

St Basil's Homes failed to discharge the onus to negate the statutory presumption that the termination of Ms Han's employment was substantially and operatively because she exercised her workplace right to make complaints and/or because of her race. The evidence established that adverse action in termination was taken for proscribed reasons; but not in issuing the warning.

Jurisdiction
Australia
Judgment Date
25 August 2023
Procedural Posture
Industrial Law/employment / Liability Determination (post Trial), Before Quantum/remedies
Outcome
Adverse action found in termination (but not in warning); declarations made; quantum of compensation, penalties, and reinstatement to be determined in later hearing.
Legal Topics
['adverse Action' 'workplace Rights' 'employment Termination' 'racial Discrimination' 'procedural Fairness']
['employment Law' 'industrial Law' 'discrimination Law'] ['adverse Action' 'workplace Rights' 'employment Termination' 'racial Discrimination' 'procedural Fairness']

Case Brief

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Procedural Posture

Industrial Law/employment / Liability Determination (post Trial), Before Quantum/remedies

Legal Issues

  1. 1 ['Whether employer took adverse action by issuing warning or termination because employee exercised workplace right to make a complaint or inquiry under ss 340(1)(a)(ii), 341(1)(c)(ii) of the Fair Work Act 2009 (Cth) or because of her race under s 351(1)' 'Whether any decision-maker had a proscribed substantial and operative reason for taking adverse action' 'Whether s 793(2) or (3) attributed state of mind of decision-makers to employer for negating the presumption in ss 360 and 361(1)']

Ratio Decidendi

St Basil's Homes failed to discharge the onus to negate the statutory presumption that the termination of Ms Han's employment was substantially and operatively because she exercised her workplace right to make complaints and/or because of her race. The evidence established that adverse action in termination was taken for proscribed reasons; but not in issuing the warning.

Court Disposition

Adverse action found in termination (but not in warning); declarations made; quantum of compensation, penalties, and reinstatement to be determined in later hearing.

Orders

  • ["Declaration that St Basil's Homes took adverse action against Ms Han in contravention of s 340(1)(a) of the Fair Work Act 2009 (Cth) on 23 January 2020 because she exercised her workplace right to make a complaint or inquiry." "Declaration that St Basil's Homes took adverse action against Ms Han in contravention...