The Industrial Magistrates Court (IMC or Court) has dismissed a Damaging Action Claim because it found the ‘complaints’ made by the former employee were not employment-related inquiries or complaints and further found that no damaging action took place.

The claim was brought by a former employee of the Department of Education (Department) who was employed by the Department under a series of fixed‑term contracts between February 2022 and October 2023. During her final contract period, she engaged in various workplace communications which, in her claim at the IMC, she characterised and relied on as employment‑related inquiries or complaints for the purposes of section 97A of the Industrial Relations Act 1979 (WA) (Industrial Relations Act).

She alleged that, because of her complaints, the Department took the following damaging actions against her:

1. Reassigned her duties
2. Required her to interview for certain roles
3. Transferred her to another work area
4. Did not extend her contract
5. Placed her on a performance management plan

The Court highlighted that section 97(a) of the Industrial Relations Act defines damaging action, in the case of an employee, to mean the following actions:

• Dismissing the employee
• Altering the employee’s position to the employee’s disadvantage
• Refusing to promote or transfer the employee
• Otherwise injuring the employee in relation to the employee’s employment with the employer or another person
• Threatening to do any of the above

The Court found that the matters the claimant put forward as ‘damaging actions’ were in fact ordinary operational and performance‑management decisions that did not alter the claimant’s position to her disadvantage, injure her employment, or constitute damaging action within the meaning of section 97(a) of the Industrial Relations Act. Further, the Court noted that the Department was under no obligation to extend a fixed‑term contract or offer the claimant any ongoing employment.

The claimant put forward to the Court a series of nine work-related emails and interactions which she characterised as complaints. She claimed these ‘complaints’ were the reasons the Department made the above five decisions about her employment which she viewed to be detrimental to her career growth, mental health, and ongoing employment with the Department.

The Court found that while some of those communications might qualify as employment-related enquiries, some were not complaints or enquiries as defined by section 97A of the Industrial Relations Act.

The Court found that four of those communications did not amount to employment‑related inquiries or complaints because they:

• did not clearly express a grievance;
• did not seek redress; and
• were not communicated to a relevant decision‑maker.

The remaining five communications were capable of being characterised as employment‑related complaints, as they contained:

• allegations about bullying and requests for a change in supervision;
• concerns about workload;
• requests for clarification on work processes; and
• pay‑related matters.

While some of the complaints met the requirements under section 97A of the Industrial Relations Act, the Court accepted the Department’s evidence that its decisions (which the Court found were not damaging action in any event) were made for legitimate operational, performance management and contractual reasons. And not because the claimant had made any inquiries or complaints. 

The decision also examines the legislative framework of damaging action claims, drawing comparisons with general protections applications under the Fair Work Act 2009 (Cth) and relevant case law. In this analysis, Her Honour stated that, “A claim for damaging action does not entitle [the claimant] to ‘a broad inquiry as to whether [she] has been subjected to a procedurally or substantively unfair outcome’”.

The Court identified various issues and evidence that the claimant sought to litigate in her damaging action claim that were not relevant to the Court in determining if any damaging action had occurred. The Court focused on the explicit enquiries, the alleged damaging actions and if those decisions she viewed as damaging actions were made because an employment-related enquiry or complaint had or could be made. The issues Her Honour ruled as irrelevant in the claim included:

• whether specific incidents of alleged bullying had occurred;
• the validity of a recruitment process by the Department;
• the manner in which a job interview outcome was delivered;
• whether the claimant performed specific job tasks satisfactorily or introduced improvement processes;
• an assessment of training that was provided or should have been provided in the claimant’s view;
• the validity of any performance improvement plans the Department implemented.

In addition to finding no damaging action occurred, the Court also determined that the claimant had not suffered any loss or injury as a result of the matters she said she had complained about. Her employment ended due to the expiry of her contract, and she did not suffer compensable injury beyond ordinary workplace disappointment. Accordingly, the Court dismissed the claim.

The decision can be read here.