During the employee’s probationary period, she took time off work due to health issues. The employee was put on a return to work plan (with reduced working hours) and a work improvement plan for failure to meet productivity targets. The employee was given an opportunity to respond to the employer’s concerns and requested an extension of the work improvement plan. The employer rejected that request and dismissed the employee because of inappropriate workplace behaviour and failure to meet the requirements of her probation.
The employee argued that:
The Court held that the dismissal was because of the employee’s failure to meet her probationary requirements and was not motivated by her illnesses, injuries or temporary absences. The Court also considered that the employee’s responses to the disciplinary process did not amount to a complaint about her employment and, in any event, that was not the reason for her dismissal.
However, the Court held that the employer’s rejection of the request for an extension of the work improvement plan had altered the employee’s position to her prejudice and was, therefore, adverse action. But then the Court found that this adverse action had not been taken for a prohibited reason (such as the employee’s disability) and, therefore, was not unlawful.
Hodkinson v The Commonwealth  FMCA 171