Franic v Australian Red Cross Society

The applicant, Romana Franic, brought proceedings in the Federal Circuit Court of Australia against the Australian Red Cross Society (the Red Cross) and two of its employees, Giuseppina Scarfo-Williams and Maureen Bower. Ms Franic alleged that the Red Cross took adverse action against her contrary to section 346 of the *Fair Work Act 2009* (Cth) by issuing her with a formal warning, threatening to dismiss her, and ultimately dismissing her, because she had exercised workplace rights. These rights included taking personal leave, making complaints about her workload, and making complaints or enquiries to lawyers and the Fair Work Commission. Ms Franic also alleged that her dismissal was contrary to section 352 of the Act because she was temporarily absent from work due to illness or injury. Finally, she alleged that the second and third respondents were knowingly concerned in the Red Cross's contraventions as accessories.

The court was required to determine whether the Red Cross took adverse action against Ms Franic for a prohibited reason under section 346 of the *Fair Work Act 2009* (Cth), and whether her dismissal was in contravention of section 352 of the Act. Additionally, the court needed to consider the liability of the second and third respondents as accessories under section 550 of the Act for any contraventions by the Red Cross. Central to these determinations was the interpretation and application of sections 360 and 361 of the Act, which deal with the definition of "reason" for taking action and the statutory presumption that applies in adverse action proceedings.

In reaching its decision, the court applied the principles established in *Board of Bendigo Regional Institute of Technical and Further Education v Barclay*. This precedent dictates that for an applicant to succeed in an adverse action claim, the prohibited reason must be a "substantial and operative factor" in the employer's decision-making process. The court considered the evidence presented by both parties, including the extensive history of Ms Franic's performance issues, her complaints about workload, and the various communications and meetings leading up to her dismissal. The court found that the Red Cross had established that Ms Franic's performance and conduct were the substantial and operative reasons for the adverse action taken against her, and that these reasons were not prohibited reasons under the Act. The court also found that the evidence did not support the claim that Ms Franic was dismissed contrary to section 352 of the Act.

Consequently, the application filed by Ms Franic was dismissed. The question of costs was reserved.