The Federal Circuit and Family Court of Australia (‘Court’) has recently determined that a failure to provide alternative ‘light’ duties to an injured employee constituted adverse action, and ultimately represented a breach of the general protections provisions in the Fair Work Act 2009 (‘FWA’). While compensation and penalties are yet to be determined by the Court, this case of Armet v CFC Consolidated Pty Ltd (No 5) [2025] (‘Armet’) is an interesting matter in that:

• It demonstrates that the right to a safe workplace may be considered a ‘workplace right’; and
• It reinforces just how broad a ‘workplace right’ may be interpreted.

In this Employment Update, we discuss the decision in Armet and what it means for Australian employers, and the law surrounding general protections applications.

Armet in a nutshell

A self-represented employee made numerous claims against the employer, which were interpreted as allegations of adverse action taken in contravention of s.340 of the FWA. The allegations can be summarised as follows:

• a general failure to provide a safe workplace;
• various failures in respect of workplace health and safety, including a failure to provide ‘light duties’ in accordance with the doctor’s recommendations after a workplace injury; and
• a failure to initiate the workers compensation process.

The employer disputed the claims and called two witnesses. Importantly though, neither of the witnesses was the decision-maker in relation to the adverse actions allegedly taken against the employee.

The Court ultimately found that the employee had a workplace right to a safe workplace or a safe system of work, with the right arising under the state occupational health and safety act.

The Court found that the actual breach of section 340 of the FWA did not arise when the employee was injured while unloading a pallet (which was an accident). Rather, the breach occurred when the employer failed to provide light duties (as recommended by the employee’s doctor) for several months and threatened to terminate the employee’s employment if he could not provide a medical certificate certifying that he was fully fit to work.

The employer’s failure to call the decision-maker ultimately resulted in (or at least contributed to) an inability to prove the adverse action was not taken for a prohibited reason.

A brief overview of Section 340 and what the Court assesses

Very broadly, section 340 of the FWA makes it unlawful for a person (in this case the employer) to take adverse action against another person (in this case an employee) because that person has a workplace right; has, or has not, exercised a workplace right; or proposes, or proposes not to, exercise a workplace right.

Accordingly, the task of the Court in a general protections matter involving an alleged breach of section 340 is to determine why the relevant adverse action was taken, and specifically whether the adverse action was taken for a prohibited reason. It is also essential to note these important features of the general protections provisions:

• A person has a workplace right if the person “is entitled to the benefit of, or has a role or responsibility under, a workplace law, workplace instrument or order made by an industrial body”;
• The unlawful reason for taking the adverse action does not need to be the whole reason for the adverse action – it only needs to be a substantive and operative factor influencing the adverse action; and
• If a person (in this case the employee) alleges that the adverse action was taken for an unlawful reason, that is presumed to be the reason for the adverse action unless the other person (in this case the employer) can prove otherwise. This is called the reverse onus of proof and arises out of section 361 of the FWA.

Importance of decision-maker(s) as witnesses

If an employee, or former employee, makes allegations of adverse action against your business, and the matter goes to hearing before a court, it is essential that the decision maker gives evidence in that hearing.

In the High Court decision of Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32, it was said that ‘generally, it will be extremely difficult to displace the statutory presumption in s 361 if no direct testimony is given by the decision-maker acting on behalf of the employer’.

A key difficulty faced by the employer in Armet is that both witnesses called by the employer at the hearing deposed that they were not the decision-maker. The first witness called by the employer, the employee’s supervisor, merely provided the certificates to the Health and Safety Department. The role of the second witness, who worked in the Health and Safety Department, was to ensure that paperwork was properly completed for workers compensation claims. Neither person was the decision-maker responsible for determining whether the employee should be provided with light duties.

As no decision-maker was called, the employer failed to discharge the onus of proof under section 361. Accordingly, the Court held that the employer breached section 340 of the FWA.

Summary

In terms of the lessons learned from this decision, employers should be aware that the scope of what constitutes a ‘workplace right’ for the purpose of a section 340 general protections application is extremely broad, and clearly extends to the right to have a safe workplace (a right all employees have at all times). Employers should also be aware that failing to implement a doctor’s recommendation regarding light duties (where it is possible to do so) or to put in place safe systems of work can constitute adverse action.

If an employee requests alternative duties for health or safety reasons, employers should consider those requests carefully and should not terminate or otherwise take adverse action against the employee in response to those requests.

When determining the response to such a request (or any other complaint or enquiry regarding an employee’s employment), employers should also ensure that there is a clear decision-maker who is responsible for determining the course of action to be taken. If evidence cannot be led from a decision-maker, employers defending a general protections claim will find it very difficult to prove that the adverse action was not taken for the alleged prohibited reason (because of the reverse onus of proof).

It is extremely important to always assess the risk of a general protections claim before taking any adverse action against an employee, whether that adverse action is to be terminating their employment; implementing disciplinary action, such as a warning; rejecting a request made by the employee; or otherwise taking action which might ‘injure’ the employee in their employment. This is because there is no ‘cap’ on compensation in general protections applications, and large penalties can be ordered against businesses and key decision makers who breach the provisions.

If an employee has made a general protections application against your business, or if you need to assess your risk of a claim, please do not hesitate to contact our experienced Employment Law Team.