A claim was brought to the Industrial Magistrates Court (IMC) under section 97A of the Industrial Relations Act 1979 (WA) (IR Act). The claimant, a Senior Social Worker employed by East Metropolitan Health Service (respondent), alleged that the respondent had engaged in ‘damaging action’ under section 97A of the IR Act by threatening to alter his employment position because of employment-related complaints he had made. 

The claimant commenced employment with the South Metropolitan Health Service in 2013 as a Senior Social Worker, moving to the managerial position of Team Leader at the East Metropolitan Health Service (EMHS) in 2016. The claimant has subsequently worked in various roles within EHMS, including Team Lead positions. Between 2018 and 2023, the claimant was the subject of complaints made against him and also made a series of employment-related complaints. The claimant’s complaints included allegations of workplace bullying, homophobia, and toxic work environments. 

In 2023, the claimant continued to raise concerns about his experience in the workplace and in response, the respondent planned to create a new substantive role at the same or equivalent classification level that was suited to the claimant's qualifications and experience. The respondent subsequently proposed to transfer the claimant to a new substantive role at an equivalent classification level requiring similar qualifications and functions, but without line management responsibility for staff. The claimant argued that the respondent’s proposed removal of managerial responsibilities threated to alter his position to his disadvantage, and this proposal was made because of the numerous employment-related complaints he had made. The claimant sought orders for compensation and a civil pecuniary penalty. 

The Industrial Magistrate was required to consider two key issues: whether the proposed transfer constituted ‘damaging action’ under section 97 of the IR Act, and if the proposed transfer constituted damaging action, whether there was a causal link between the employment-related complaints and the proposed transfer.  

The Industrial Magistrate determined the evidence overwhelmingly demonstrated that the proposed transfer was not to the claimant’s disadvantage. The new substantive position was created specifically for the claimant to remedy feelings of being undervalued and not belonging at work, and where no suitable permanent vacancies were available. The claimant was not required to apply for the role and was given an opportunity to discuss the details of the position and provide feedback on the proposed transfer before it was implemented. 

In finding that the proposal to transfer the claimant to a new role did not constitute ‘damaging action’, the respondent then did not bear any onus to prove that the transfer was not proposed to the claimant because of the claimant’s series of complaints. However, Her Honour contemplated the reasons for the proposed transfer and determined that, even if the proposal to transfer the claimant did constitute damaging action, the respondent did not propose to transfer the claimant because of the employment-related complaints he made. According, the Industrial Magistrate dismissed the claim. The full decision can be read here.