Decisions on adverse action in breach of the general protections
provisions of the Fair Work Act have reinforced the importance of
the evidence of the decision maker as to the matters which
were operative in his or her mind at the time of making the
decision to terminate employment or take whatever other action is
alleged to be "adverse action".
In a case involving a lawyer in the Victorian Office of Public
Prosecutions (Victoria v Grant) , the lawyer's
employment was terminated for disclosing confidential information,
poor performance, disobeying directions to attend Court and other
conduct issues. At the same time, the lawyer had been grappling
with depression. The Federal Circuit Court awarded over $100,000 in
damages and penalties, because the judge felt that the conduct and
the depression were completely interwoven, and that this should
have been apparent to the manager.
