Mikulic v Ecolab Pty Ltd

The applicant, Mr. Mikulic, brought proceedings against his employer, Ecolab Pty Ltd, in the Federal Court of Australia alleging adverse action was taken against him in contravention of the *Fair Work Act 2009* (Cth). The dispute concerned Mr. Mikulic's claim that his employer took adverse action by terminating his employment because he had a disability and had exercised a workplace right by making a complaint about his disability.

The central legal issues before the Court were whether Mr. Mikulic had established a prima facie case of adverse action under section 340C of the *Fair Work Act*, and if so, whether Ecolab Pty Ltd had discharged the reverse onus of proof under section 361 of the Act by demonstrating that it had a valid reason for the dismissal, unrelated to Mr. Mikulic's protected attributes or workplace rights. The Court was also required to consider the interaction between the *Fair Work Act* and the *Disability Discrimination Act 1992* (Cth) in the context of adverse action claims.

Judge Cameron found that Mr. Mikulic had established a prima facie case of adverse action. The Court reasoned that the employer's stated reasons for dismissal, namely poor performance and a failure to meet key performance indicators, were not substantiated by sufficient evidence and appeared to be a pretext for the actual reason, which was related to Mr. Mikulic's disability. The Court applied the principles of statutory interpretation to the *Fair Work Act*, emphasizing that the employer bears the onus of proving that the prohibited reason was not a reason for the adverse action. The Court concluded that Ecolab Pty Ltd had failed to discharge this onus.

The Court ordered that Ecolab Pty Ltd contravened section 340C of the *Fair Work Act* and that Mr. Mikulic was entitled to relief. The matter was adjourned to enable the parties to make submissions on the appropriate form of relief, including compensation.