A bombshell at Essendon FC – employment law lessons
The resignation of freshly-appointed Essendon Football Club CEO, Andrew Thorburn, within 24 hours of announcing his commencement has garnered an explosion of media commentary, both in social and print forms.
Since the announcement, discussion topics such as lawful/unlawful termination, due process and discrimination have proliferated across social media platforms. Of particular interest is the topic of potentially forced resignations and discrimination under the general protections of the Fair Work Act 2009 (Cth). So, what constitutes forced resignation and discrimination/unlawful adverse action under the Fair Work Act?
Was there a forced resignation? What action/proposed action did the employer take?
Even where an employee resigns (rather than being dismissed by the employer), they may still have been subjected to unlawful adverse action if their resignation was due to conduct or a course of conduct by the employer. This is often known as ‘constructive dismissal’.
An employer needs to consider the actions, proposed actions and discussions that occurred between the employer and the employee, leading to the employee’s resignation. If the employer threatened the employee with dismissal unless they resign, this will clearly be a forced resignation (or ‘constructive dismissal’), which amounts to dismissal by the employer at law.
Section 351 and reasons for (threatened) dismissal
Discrimination is addressed within the general protections provisions of the Fair Work Act. Under section 351:
An employer must not take adverse action against a person who is an employee, or a prospective employee, of the employer because of the person’s race, colour, sex, sexual preference, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin.
An employer bears a reverse onus of proof under the general protections. As a result, a Court will focus on the reasons for the threatened dismissal that resulted in the resignation. The reasons must not be any of the reasons prohibited under section 351 (or any other reason prohibited by the Fair Work Act).
If an employee resigns because they have been threatened with dismissal due to their religious beliefs, the employee would likely have been subjected to unlawful adverse action. Alternatively, if the reasons for the forced resignation were a failure to disclose a conflict of interest, or adverse customer/client perceptions of the employee, rather than their religious beliefs, the employer may have a reasonable defence to a general protections claim. This is because the reasons for the forced resignation would not be prohibited reasons under the Fair Work Act.
At this early stage, and with limited information, it is unclear how the Essendon/Thorburn matter may pan out. We do not know, for example, whether it will be similar to the recent matter involving Israel Folau, whose contract was terminated due to controversial public statements made (allegedly) because of his religious beliefs.
- Employers should be aware of the scope of ‘protected attributes’ in relation to discrimination under the Fair Work Act. Expressions of religious beliefs, even if the beliefs discriminate against others in society, may be protected. Political opinions, memberships to industrial associations and even social origins (plus more) are also protected.
- Employers should also be aware of the scope of ‘adverse action’ under the Fair Work Act. It’s not just dismissal which is ‘adverse action’. Forced resignations, warnings, failures to promote and demotion (and others) also fall within the meaning of ‘adverse action’.
- Employers should tread carefully even if concerned about the potential consequences of an expression of religious belief by an employee. The employer should ensure it follows due process, investigates properly and seeks legal advice before taking any action against the employee, due to the risks of a claim.
- If in doubt, before making any decision which risks adversely impacting an employee, contractor, prospective employee, or a union member in their employment, an employer should seek legal advice from employment lawyers.