Director of the Fair Work Building Industry Inspectorate v Robko Construction Pty Ltd

The Director of the Fair Work Building Industry Inspectorate (the Director) commenced proceedings in the Federal Court of Australia against Robko Construction Pty Ltd (Robko). The dispute concerned allegations that Robko had contravened section 346 of the *Fair Work Act 2009* (Cth) by taking adverse action against an employee, Mr. Mark Gannon, because he had exercised a workplace right. Specifically, the Director alleged that Robko had dismissed Mr. Gannon from his employment as a site manager due to his requests for payment of outstanding entitlements and his complaints about unsafe working conditions.

The primary legal issue before the Court was whether the Director had established that Robko’s dismissal of Mr. Gannon constituted adverse action taken for a prohibited reason, namely the exercise of workplace rights. This required the Court to determine whether Mr. Gannon had indeed exercised workplace rights as defined by the *Fair Work Act* and, if so, whether those rights were a substantial and operative reason for Robko’s decision to terminate his employment. The Court also considered the nature of the adverse action and the causal connection between the exercise of workplace rights and the dismissal.

Judge Raphael found that Mr. Gannon had exercised workplace rights by making requests for payment of outstanding entitlements and by raising concerns about safety. The Court determined that these actions were substantial and operative reasons for Robko’s decision to dismiss him. In reaching this conclusion, the Court applied the principles established in cases concerning adverse action, focusing on the need to identify the true reason for the employer's conduct. The Court was satisfied that the Director had discharged the onus of proof, demonstrating that Robko had contravened section 346 of the Act.

The Court ordered Robko Construction Pty Ltd to pay pecuniary penalties for the contravention of section 346 of the *Fair Work Act 2009* (Cth).