Pezzimenti v Rotary International

In *Pezzimenti v Rotary International*, Judge Driver of the Federal Circuit Court of Australia considered an adverse action claim brought by Mr Pezzimenti against his former employer, Rotary International. The dispute arose from the implementation of a Performance Improvement Plan (PIP) and Mr Pezzimenti's subsequent dismissal. Mr Pezzimenti alleged that his dismissal was motivated, in part, by a proscribed reason, thereby contravening the *Fair Work Act 2009* (Cth).

The central legal issue before the Court was to determine the quantum of damages payable to Mr Pezzimenti, specifically the period for which he would have remained employed had the contravening conduct not occurred. This required the Court to assess the likelihood of Rotary International terminating Mr Pezzimenti's employment in any event, and if so, when and under what circumstances. The Court also had to consider the causal connection between the contravening conduct and the loss suffered by Mr Pezzimenti, including his period of unemployment.

The Court reasoned that Rotary International had failed to discharge its onus of proof in demonstrating that it would have terminated Mr Pezzimenti's employment irrespective of the proscribed reason. The evidence did not support Rotary's submission that the employment would have ended shortly after 30 June 2017. Instead, the Court found it more probable that Rotary would have either continued the employment with a view to further improvement, or negotiated a transition and exit plan. The Court determined that had an exit plan been negotiated, Mr Pezzimenti would likely have secured suitable alternative employment within four to six months. Consequently, the Court ordered Rotary International to pay Mr Pezzimenti compensation for a period of 12 months, totalling $205,342, representing the loss incurred from his premature dismissal until a point where a managed exit would likely have resulted in re-employment.