Farrell v Choosewell Health Link Pty Ltd

The applicant, a former employee of the First Respondent, sought declarations against the First and Second Respondents. The applicant alleged that her employment termination by way of redundancy on 12 July 2018 constituted adverse action under the *Fair Work Act 2009* (Cth) (FW Act), as it was purportedly taken because she had exercised her workplace rights to make various complaints. These complaints related to commission structures, unsafe workplace activities, bullying and harassment, inappropriate conduct, and a workplace culture unsafe for women. The applicant also claimed she was not paid her full redundancy entitlements, commission, or other monies owed, and that the respondents breached contractual provisions and an applicable award. The Second Respondent, a director of the First Respondent, was alleged to be involved in these contraventions under s 550 of the FW Act. The respondents denied these claims, asserting the redundancy was genuine, the applicant declined redeployment, certain contractual statements were aspirational, the award was not applicable or breached, and all entitlements had been paid.

The court was required to determine whether the First Respondent took adverse action against the applicant for a prohibited reason under the FW Act. This involved assessing whether the applicant's complaints constituted the exercise of a "workplace right" and whether the alleged actions, including her termination, were taken because of those complaints. Additionally, the court had to consider the applicant's claims for unpaid redundancy pay, commission, and breaches of her contract and the relevant award, as well as the alleged accessorial liability of the Second Respondent. The respondents contended that the redundancy was genuine and that the applicant was not entitled to redundancy pay as she had refused an offer of redeployment.

The court found that the First Respondent did not take adverse action against the applicant for a prohibited reason. Specifically, the court determined that the exclusion from sales group emails, alleged as the "First Adverse Action," did not constitute adverse action under s 342 of the FW Act because the action was taken by Mr Tsimeris, who was employed by a separate corporate entity (HICC) and not the applicant's employer, the First Respondent. The court reasoned that for adverse action to be established, it must be taken by the employer against the employee. While the entities were related and Mr Davis was a common figure, they were distinct legal entities, and actions taken by an employee of one entity did not automatically constitute adverse action by the other.

Ultimately, the court concluded that the First Respondent had breached clause 5 of the applicable award but not clause 8. The applicant was not entitled to a redundancy payment under s 119 of the FW Act, and her claim for commission was dismissed. The allegations of accessorial liability against the Second Respondent under s 550 of the FW Act were also dismissed. The parties were directed to confer regarding proposed orders reflecting these findings.