Gee v Macmahon Underground Pty Ltd (No.2)

In *Gee v Macmahon Underground Pty Ltd (No.2)*, heard by Judge Antoni Lucev, the dispute concerned whether Mr Gee's termination constituted a dismissal by reason of redundancy, as asserted by Macmahon Underground Pty Ltd, or whether the adverse action and dismissal arose from the decision not to redeploy Mr Gee.

The court was required to determine whether the non-selection of Mr Gee for a position constituted adverse action, and if so, whether this, or the redundancy itself, was the operative cause of his dismissal. The court considered the principles established in *Rowland v Alfred Health* and *Dutta v Telstra Corporation Ltd* regarding what constitutes adverse action under the relevant legislation.

The court reasoned that adverse action includes any alteration to an employee's position to their prejudice. It was accepted that the termination of Mr Gee's employment was adverse action. Drawing on *Rowland*, the court noted that subjecting an employee to a situation where they must re-apply for their position, with the risk of redundancy, constitutes an adverse affection of their employment. Furthermore, referencing *Dutta*, the court acknowledged that both the decision to select an employee for redundancy and the decision not to redeploy them to an alternative position can constitute adverse action. The central issue remained whether the redundancy was the genuine reason for dismissal or if the failure to redeploy was the operative adverse action.