Court finds HR decision-makers must independently assess dismissal recommendations

Can HR rely solely on a manager’s recommendation to terminate an employee? In a recent decision, the Federal Circuit and Family Court of Australia found that an employer had contravened the general protections provisions of the Fair Work Act 2009 (Cth) (Fair Work Act) after a HR manager had accepted a manager’s recommendation to dismiss an employee without conducting an independent assessment. The decision highlights the risks of relying on untested allegations and reinforces that HR decision-makers must independently scrutinise the evidence and reasons for dismissal, particularly where the employee has raised complaints.

Key facts

The employee commenced employment as a part-time Residential Wellness Manager in August 2024, primarily covering afternoon shifts across two of the facility’s six neighbourhoods.

Between September 2024 and January 2025, the employee raised several concerns with the residential manager, including inadequate staffing during a gastro outbreak, colleagues’ conduct, workplace practices and her pay classification. The Court accepted that the residential manager understood these were complaints or grievances and that the employee expected a response. However, the complaints were not meaningfully investigated.

Meanwhile, colleagues raised concerns about the employee’s own conduct and performance, including her communication with staff, resident handling practices, confidentiality and completion of rounds and teamwork.

On 24 January 2025, the residential manager recommended dismissal, which the executive people and culture manager accepted. The employee was informed on 28 January that her employment would not continue, without being given a reason for the dismissal at the time.

The employee subsequently alleged that her dismissal was adverse action taken because she had exercised workplace rights.

Key findings

The legal issues

The central issue was whether the employer had contravened section 340 of the Fair Work Act by dismissing the employee because she had exercised workplace rights.

Section 341 includes certain entitlements to make complaints or inquiries in relation to employment within the definition of a workplace right. An employee may therefore be protected when raising concerns about matters such as staffing arrangements, workplace conduct or remuneration.

Under section 361, where an employee alleges that adverse action was taken for a prohibited reason, it is presumed that the alleged reason was operative unless the employer proves otherwise. The employer must establish that the prohibited reason was not a substantial and operative reason for the action.

The Court therefore needed to examine the reasons for the dismissal, including whether the employee’s complaints influenced the residential manager’s recommendation and, through that recommendation, the executive people and culture manager’s decision.

The case also illustrates the distinction between unfair dismissal and general protections claims. An employee who has not completed the minimum employment period required to bring an unfair dismissal claim may nevertheless bring a general protections claim if they allege that adverse action was taken for a prohibited reason.

The Court’s findings

The employer argued that the executive people and culture manager was the decision-maker and had not seen the employee’s complaint emails.

The Court accepted that the executive manager was unaware of most of the complaints, apart from the pay classification inquiry. It also accepted that her own reasoning was based on the conduct and performance concerns communicated to her, rather than being personally motivated by the employee’s complaints.

However, the executive manager conceded that she had made “no independent assessment” of the employee’s performance. She had relied entirely on the residential manager’s recommendation without speaking to the employee, reviewing primary evidence or independently verifying the allegations.

When questioned about her approach, the executive manager agreed that she had received a recommendation and accepted what it contained.

The Court found that the dismissal decision was “therefore her own in the formal sense, but it was made wholly upon information selected, characterised and conveyed to her” by the residential manager.

This distinction was central to the outcome. The executive manager’s lack of personal knowledge of most of the employee’s complaints did not mean that the dismissal process was free from the influence of those complaints.

The residential manager’s reasoning was not independent of the complaints

The residential manager maintained that her recommendation was based on the employee’s conduct and performance, rather than the workplace complaints.

However, the Court was concerned by her evidence that she did not know whether she had been able to put the employee’s complaints out of her mind when recommending dismissal. As the judge observed, the residential manager “candidly” conceded that she “did not know” how she could have put the complaints out of her mind.

The residential manager also acknowledged that she had no independent factual basis for the complaints on which she relied.

The Court considered that the failure to verify allegations before recommending dismissal, together with the procedural deficiencies in the process, supported a conclusion that factors other than innocent performance management had influenced the recommendation.

The judge described the resulting concern as “an unease” about what had truly motivated the residential manager’s recommendation. The Court found that she had likely allowed one or more of the employee’s workplace complaints to affect her reasoning.

The employer failed to discharge the reverse onus

The decisive issue was the effect of the residential manager’s recommendation on the ultimate dismissal decision.

Although the Court accepted that the executive manager was not personally motivated by most of the employee’s complaints, the residential manager’s reasoning had a material effect on the executive manager’s decision to dismiss her.

The employer was therefore unable to discharge the reverse onus under section 361 by establishing that the employee’s exercise of workplace rights was not a substantial and operative reason for the dismissal.

The Court concluded that the employer had contravened section 340 of the Act by dismissing the employee because she had exercised workplace rights.

The decision concerned liability only. Compensation and any pecuniary penalties remain to be determined.

Key takeaways

The decision highlights the risks of relying on untested allegations and reinforces that HR decision-makers must independently scrutinise the evidence and reasons for dismissal, particularly where the employee has raised complaints. Employers should remember to:

• Independently assess dismissal recommendations – HR should not simply adopt a manager’s recommendation but must independently assess the evidence and reasons for dismissal.
• Verify allegations – Review relevant records, speak to appropriate witnesses and give the employee an opportunity to respond before making a decision.
• Consider the influence of workplace complaints – Assess whether an employee’s complaints or inquiries have influenced a manager’s recommendation, the timing of the disciplinary action or the final decision.
• Document the decision-making process – Keep contemporaneous records of the evidence considered, the employee’s response and the genuine reasons for dismissal.

How can NRA Legal assist?

If you are considering dismissing an employee or require guidance and support to mitigate the risk of a successful unfair dismissal claim, NRA Legal can assist with workplace investigations, assessing risks associated with dismissal, and providing advice on appropriate disciplinary processes. Contact NRA Legal on 1800 572 679 for a confidential conversation.

Kaur v Trustee for the Willow Wood Cranbourne Aged Services Trust (No 2) [2026] FedCFamC2G 1994