Fair Work Ombudsman v Tuscan Landscape Company Pty Ltd

The Fair Work Ombudsman brought proceedings against Tuscan Landscape Company Pty Ltd in the Federal Circuit and Family Court of Australia concerning allegations of adverse action under section 342 of the *Fair Work Act 2009* (Cth). The dispute centred on the alleged alteration of an employee's position to their prejudice, specifically through coercion involving a threat to cease employment.

The court was required to determine whether Tuscan Landscape Company Pty Ltd had engaged in adverse action by threatening to terminate an employee's employment as a consequence of the employee exercising a workplace right. This involved assessing whether the employer's conduct constituted coercion and whether the employee's position was altered to their prejudice. The court also considered the appropriate penalty to be awarded, taking into account various factors relevant to sentencing in industrial law matters.

In its reasoning, the court applied the principles governing adverse action and coercion under the *Fair Work Act*. It considered the agreed statement of facts and applied the "instinctive synthesis" test to determine the quantum of the penalty, weighing factors such as the nature of the loss and damage suffered by the employee, the need for general and specific deterrence, and the totality principle. The court also took into account factors relevant to small businesses, including the potential oppressiveness of a penalty on the company, its shareholders, and its employees. The court ultimately awarded a penalty against Tuscan Landscape Company Pty Ltd.