You may recall a few months back a blog post Cricket Australia’s legal position turns to Ashes on the sacking of the Australian Cricket team’s coach Mickey Arthur, two weeks ahead of the team’s Ashes test tour of England and less than two years into the job. We now know this drastic action by Cricket Australia did nothing to stop the country suffering an embarrassing Ashes defeat. But what happened to the discrimination claim Arthur instigated against Cricket Australia?
South African born Arthur had launched a claim at the Fair Work Commission (Australia’s industrial tribunal) for the rumoured sum of AUS$4 million, or reinstatement. We note again that details of the case reported here are based on information anonymously leaked to the media.
There are two statute-based claims a former employee can bring before the Fair Work Commission – either unfair dismissal or ‘adverse action’. ‘Adverse action’ is the collective term used to describe a range of claims that can be brought under the general protections provisions of the legislation. In a nutshell a person is ‘protected’ from being treated ‘adversely’ if that treatment is for a prohibited reason. A prohibited reason includes discrimination, and the leaked details of the claim revealed that Arthur alleged race discrimination on the basis of his allegedly not understanding the ‘Australian way’.
Unlike unfair dismissal, an ‘adverse action’ claim does not have a compensation cap and is without any barriers for high income earners. High income earners (over AUS$129,300 per year) are only protected from unfair dismissal if they are covered by a statutory instrument (either a modern award or an enterprise agreement). Arthur will have been eligible for unfair dismissal protection despite earning a reported AUS$400,000 per year as his position would be covered by the modern award that applies to coaches. However, only an ‘adverse action’ claim would have allowed him to make the alleged claim of AUS$4 million in compensation for his dismissal.
In the month between the claim’s commencement and the private conciliation between the parties scheduled at the Fair Work Commission, further leaks relating to Arthur’s claim were reported in the media. While the leaks were strenuously denied by Arthur to be from his camp, they revealed further damaging details of the dysfunctional state of the Australian Cricket team including the allegation that team Captain Michael Clarke viewed high profile batsman Shane Watson as a ‘cancer’ on the team.
The conciliation before the Commissioner continued into a second day before a private settlement was reached. It is fair to say that both parties would have been highly motivated to settle the matter privately before proceeding to court and a public hearing (being the next stage of an ‘adverse action’ claim). The parties emerged quietly into the media storm on the street, with Arthur announcing he was “happy” with the result and ready to start “a new chapter”. While neither party has been willing to publically discuss the settlement figure, the rumour mill puts the amount at AUS$400,000, just 10% of what is thought to be his original claim. And the new chapter? Arthur has already started his new job as cricket coach at a top private boys’ school in Perth.
