Director, Fair Work Building Industry Inspectorate v Forest Meiers Construction Pty Ltd

The Director, Fair Work Building Industry Inspectorate (the Director) commenced proceedings against Forest Meiers Construction Pty Ltd (Forest Meiers) in the Federal Court of Australia. The dispute concerned allegations that Forest Meiers had contravened section 346 of the *Fair Work Act 2009* (Cth) (the Act) by taking adverse action against an employee, Mr. K. J. Smith, because he had exercised a workplace right. Specifically, the Director alleged that Forest Meiers had dismissed Mr. Smith from his employment as a carpenter on 15 March 2013 due to his having made a complaint to the Fair Work Ombudsman regarding alleged underpayment of wages.

The primary legal issue before the Court was whether the Director had established, on the balance of probabilities, that Forest Meiers' reason for dismissing Mr. Smith was his exercise of a workplace right, namely making a complaint about underpayment. This required the Court to consider the evidence presented by both parties regarding the circumstances surrounding Mr. Smith's dismissal and the stated reasons for that dismissal.

Judge Jarrett found that the Director had discharged the onus of proof. The Court was persuaded that the timing of Mr. Smith's dismissal, occurring shortly after he made his complaint about underpayment, was not coincidental. Evidence was presented that Forest Meiers had been aware of the complaint and had expressed dissatisfaction with Mr. Smith's actions. The Court concluded that the stated reasons for dismissal, including alleged poor performance and a lack of work, were not credible and were a pretext for the adverse action taken. The Court applied the principles of statutory interpretation relevant to adverse action provisions, focusing on the employer's motive or reason for the action.

Forest Meiers was found to have contravened section 346 of the Act. The Court ordered Forest Meiers to pay pecuniary penalties and compensation to Mr. Smith.