Loukis v Compaction & Soil Testing Services Pty Ltd

In this matter before Driver J of the Federal Court of Australia, Ms Loukis alleged that Compaction & Soil Testing Services Pty Ltd contravened section 340 of the *Fair Work Act 2009* (Cth) by taking adverse action against her. The dispute centred on Ms Loukis' dismissal from her employment on 30 October 2019, which she contended was for impermissible reasons, specifically due to complaints she made about her wages or her exercise of a workplace right to take personal leave.

The court was required to determine whether the Company engaged in adverse action against Ms Loukis, as defined by section 342(1) of the *Fair Work Act*, and if so, whether it was for a prohibited reason or reasons that included a prohibited reason. Central to this determination was the application of section 361 of the *Fair Work Act*, which creates a statutory presumption that reverses the onus of proof. This presumption requires the employer to prove that the adverse action taken was for a reason other than a reason proscribed by the Act.

Driver J reasoned that the task was to ascertain, on the balance of probabilities, the true reason for Ms Loukis' dismissal. The court noted that section 360 of the *Fair Work Act* clarifies that action is taken for a particular reason if that reason is included among the employer's reasons. Applying the principles from *Cummins South Pacific Pty Ltd v Keenan*, the court understood the Company's burden to be negating the alleged prohibited reason as a "substantial and operative" reason for the dismissal. Despite the statutory presumption, the Company was able to satisfy the court that the reason for Ms Loukis' dismissal was not a prohibited reason under the *Fair Work Act*.

Ultimately, Ms Loukis failed to establish the necessary elements of her claim. The court found that the Company had discharged its onus of proving that the dismissal was not for a prohibited reason and did not involve a breach of the *Fair Work Act*. Accordingly, the application was dismissed.