Background
Melissa Boyd worked for Roadworx Surfacing Pty Ltd as a WHS and quality-assurance compliance manager/officer. Roadworx terminated her employment on 16 January 2025 with four weeks’ pay in lieu of notice and issued a further termination letter on 21 January alleging misconduct.
Boyd brought proceedings under the Fair Work Act 2009 (Cth), alleging that Roadworx dismissed her because she had exercised, or proposed to exercise, workplace rights. The Federal Circuit and Family Court of Australia (Division 2) found that she had exercised one workplace right and proposed to exercise another, but accepted Roadworx’s evidence that those matters were not substantial or operative reasons for her dismissal. Boyd appealed, challenging the fact-finding, application of the statutory reverse onus, treatment of an email she sent to SafeWork NSW, and the fairness of the hearing.
The Court’s Holding
Justice Goodman dismissed the appeal. The primary judge was entitled to accept evidence that Roadworx’s chief executive had decided in December 2024 to terminate Boyd for performance and conduct reasons. Although the absence of contemporaneous documentation weighed against that account, it was supported by evidence from other employees, contemporaneous concerns about Boyd’s attendance and conduct, and evidence that she had jeopardised Roadworx’s relationship with a safety-services provider. The finding was not glaringly improbable or contrary to compelling inferences.
The Court also upheld the finding that Boyd’s 15 January email telling SafeWork NSW that Roadworx lacked a psychosocial policy or procedure was not the exercise of a workplace right: it conveyed information rather than a complaint or inquiry and did not pertain to her employment. In any event, the accepted evidence was that the email contributed to dismissal because management regarded the direct contact as disobedience of an instruction, not because of its content. Roadworx therefore discharged its onus under s 361 to prove that protected workplace activity was not a substantial or operative reason for the termination.
Goodman J further rejected Boyd’s procedural-fairness arguments. The primary judge’s interventions during her questioning appropriately addressed unclear or compound questions and ensured that witnesses could finish their answers; the transcript did not show that Boyd had been prevented from presenting her case.
Key Takeaways
- An employer defending a Fair Work Act adverse-action claim must prove that the asserted protected activity was not a substantial or operative reason for its decision.
- An employee’s communication with a regulator is not automatically a workplace right; its substance must satisfy one of the categories in s 341.
- An appellate court will not overturn credibility-based factual findings merely because parts of the documentary record support a competing inference.
Why It Matters
The decision illustrates how courts separate the protected content of an employee’s communication from an employer’s asserted concern about the manner in which the employee acted. Even where workplace-right activity occurs close to dismissal, timing alone does not establish the causal connection required by s 340.
It also underscores the importance of contemporaneous performance records. Their absence may count against an employer, but corroborating witnesses, documented workplace concerns, and findings about the decision-maker’s actual reasons can still satisfy the statutory reverse onus.