Key Points:
An employer's workplace investigation proved
critical in holding that adverse action had not been taken for a
prohibited reason.
A workplace investigation which causes prejudice to an employee
can be the subject of an adverse action claim under the Fair Work
Act 2009 (Cth). However, in CFMEU v Leighton Contractors Pty Ltd
[2012] FMCA 487, Burnett FM relied on the employer's workplace
investigation in holding that adverse action had not been taken for
a prohibited reason.
The decision is important because it illustrates the role played
by workplace investigations in adverse action proceedings. This
investigation demonstrated that the respondent's real motive
was to assess whether the employee was entitled to workers'
compensation. Therefore, entitlement to workers' compensation
could not be an operative reason for any of the impugned
conduct.
