Australia: Employer liable for dismissal of store supervisor during probationary period under General Protections Provisions

Last Updated: 15 February 2019
Article by Annie Smeaton and Sandra Barry

In Pacheco-Hernandez v Duty Free Stores Gold Coast Pty Ltd [2018] FCCA 3734, the Federal Circuit Court ordered an employer to pay compensation to a store supervisor after she was dismissed during her probationary period. Relevantly, the employer refused to provide reasons to the employee for her dismissal, resulting in the Court determining that the dismissal occurred because she had made complaints about her employment.


About one month after she commenced employment, the store supervisor emailed her area manager stating she:

  • felt overwhelmed with the business issues and the constant battles she had to deal with during every shift;
  • was not seeing any improvement from management in addressing the issues;
  • felt she was doing tasks that were not part of her job description;
  • was facing significant disrespect from staff;
  • was feeling ‘really overwhelmed’, and she was asking the question ‘is the right business for me to [be] in?’; and
  • did not want to be called or emailed on her days off.

There were then a series of further incidents involving the store supervisor and the area manager and both had ongoing discussions with members of the employer’s senior management. The store supervisor made a number of similar further complaints via email and also complained about the rostering.

The employer’s HR Manager and the area manager had a number of conversations about the store supervisor and ultimately decided together to terminate her employment.

The store supervisor’s employment was terminated within the store supervisor’s probationary period.  The termination letter provided no reason for the dismissal. The store supervisor was also advised verbally by the manager that the employer was not legally obliged to give the store supervisor reasons for dismissal.

General protections application under the Fair Work Act

The employee commenced proceedings against the employer alleging the employer contravened section 340 of the Fair Work Act by dismissing her because she exercised a workplace right by making a complaint in relation to her employment.


Judge Manousaridis of the Federal Circuit Court found the employer had taken adverse action against the store supervisor by dismissing her and that the store supervisor had exercised a workplace right when she had made a number of complaints in relation to her employment via email.

The Court then went on to consider who had made the decision to dismiss the store supervisor. The employer’s submission that the human resource manager alone was the person who decided to dismiss the store supervisor was rejected by the Court because the evidence:

  • demonstrated that the human resource manager had only given advice to the store manager about terminating the store supervisor’s employment; and
  • was ambiguous in terms of what the human resource manager decided, or what she had authority to decide, in relation to the store supervisor’s dismissal.

Judge Manousaridis found that, at some point before the area manager spoke to the human resource manager, the area manager had determined that she wished to dismiss the store supervisor and sought permission from the human resource manager. His Honour also determined that the area manager was involved in the decision making process.

Substantive and operative factors for dismissal

Judge Manousaridis held that the employer could not prove that one of the substantive and operative factors in dismissing the store manager had not been because she had made a complaint in relation to her employment, because:

  • the area manager was not called to give evidence and, as such, there was no evidence from one of the two relevant decision-makers;
  • there was no substantiated reason provided for the area manager not being called to give evidence during the hearing and, as a result, an inference was drawn that she would have given unfavourable evidence;
  • while the human resource manager did give evidence, she did not give direct evidence of the reason or reasons for which she agreed with the area manager that the store supervisor should be dismissed; and
  • the human resource manager’s evidence was that she discussed with the area manager her concerns about the store supervisor but that the evidence was so brief and general that it did not exclude a number of the complaints that the store supervisor had made as being potentially substantive and operative factors in the decision to dismiss.

Judge Manousaridis rejected the employer’s argument that the store supervisor’s dismissal was because her behaviour did not fit within the team or did not exhibit respect for management. His Honour found that, given the nature and extent of the complaints the store supervisor made, and the vigour with which she expressed them, it was difficult not to conclude that the complaints constituted or at least formed a substantial part of the reasons for her dismissal.

The Court ordered the employer to pay the store supervisor eight weeks of lost wages, lost accrued annual leave on those eight weeks of wages and superannuation contributions.


The decision highlights the importance of calling evidence from all decision makers.

The decision also demonstrates that dismissing an employee during their ‘probationary period’ will not prevent the employee from making a successful application concerning dismissal where that employee has exercised a workplace right.

© Cooper Grace Ward Lawyers

Cooper Grace Ward is a leading Australian law firm based in Brisbane.

This publication is for information only and is not legal advice. You should obtain advice that is specific to your circumstances and not rely on this publication as legal advice. If there are any issues you would like us to advise you on arising from this publication, please contact Cooper Grace Ward Lawyers.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions