GENERAL PROTECTIONS – workplace rights – arbitration – ss.365, 369 Fair Work Act 2009 – application to deal with a general protections dismissal dispute by consent arbitration – applicant employed as Bequest Officer – applicant’s manager alleged he had engaged in inappropriate behaviour at a meeting with her in November 2014 – alleged intimidation – applicant issued with formal written warning in December 2014 – manager made further complaints about his conduct at meetings in December 2014 and January 2015 – in February 2015 respondent issued a ‘final warning’ regarding applicant’s conduct in workplace – applicant filed an ‘application for an order to stop bullying’ against respondent and manager in Commission – in April 2015 a consensus developed that applicant could not return to work reporting to the manager – applicant offered a temporary/trial role for six weeks at its State Support Office – temporary role extended by three weeks – in June 2015 respondent put three options to applicant in the event that the temporary role was not extended – further redeployment, retrenchment, or discussions ‘for a mutual separation arrangement’ – internal investigation into bullying claim by independent investigator not found proven – in August 2015 attempts to find a permanent position for applicant redeployment failed – applicant dismissed – applicant claimed respondent took adverse action in dismissing him – reasons given included his complaint of workplace harassment and bullying against his manager, and his application for an anti-bullying order to the Commission – Commission found applicant exercised a workplace right by commencing his anti-bullying application in the Commission and when he complained to respondent about the treatment he was experiencing from his manager – found decision to dismiss applicant was ‘adverse action’ within meaning of s.342(1) of FW Act – satisfied that because applicant could not perform the inherent requirements of his job, and after nearly six months of a search for an alternative position, the decision to dismiss the applicant was open to the respondent – adverse action not taken because of a prohibited reason, or reasons which included that reason – application dismissed. Lisha v St Vincent de Paul Society NSW
