There’s a dangerous assumption I see in workplaces all the time:
“If we don’t act, we can’t get it wrong.”
This case shows why that thinking is flawed.
In Mitri v Fire Rescue Victoria [2026] FedCFamC2G 495 (30 March 2026), the Court was asked to deal with a general protections claim involving a long-serving employee and a range of alleged workplace issues.
But what makes this case particularly interesting for HR isn’t just what happened.
It’s what didn’t happen.
The Real Issue: Complaints That Went Nowhere
At the centre of the claim (there are a number of them) were allegations that the employer failed to:
- Respond to complaints
- Address issues raised
- Consider or properly deal with concerns
In other words, the alleged “conduct” wasn’t action.
It was inaction.
The employee tried to frame that inaction as “adverse action” under the Fair Work Act.
That’s where things got complicated.
Can Doing Nothing Be “Adverse Action”?
The Court made an important observation:
The law typically expects positive action when defining “adverse action”
Not just a failure to act.
But here’s the critical nuance:
The Court didn’t say inaction is harmless.
Instead, it pointed out that if you want to rely on inaction, you need to frame it properly.
For example:
- Was there an obligation to act?
- Was there a decision not to act?
- Who made that decision?
Because once you frame it that way, “inaction” can start to look a lot like a deliberate decision.
And that’s where risk lives.
The HR Reality: Silence Is Rarely Neutral
From an HR perspective, this is where things get uncomfortable.
Because in practice:
- Not responding to a complaint is a decision
- Delaying a response is a decision
- “Let’s wait and see” is a decision
And those decisions can:
- Damage psychological safety
- Escalate conflict
- Undermine trust in leadership
- Trigger legal exposure
The biggest risk isn’t always what you say or do.
It’s what you ignore.
A Second Lesson: You Need to Be Precise
The Applicant was invited to replead the case not because there was no potential claim, but because the pleadings were insufficient.
But it reflects a workplace issue too.
If your organisation:
- Doesn’t clearly document complaints
- Doesn’t track responses
- Doesn’t identify decision-makers
You create the same problem internally:
No one really knows what happened, who decided, or why
And that’s exactly what gets tested later.
What HR Teams Should Take From This
This case is a reminder of a few hard truths:
- Every complaint needs a response
Even if the answer is “we are still investigating” - Inaction will be scrutinised
Silence doesn’t make issues disappear, it often amplifies them - Decisions need to be identifiable
Who decided not to act matters just as much as who acted - Process is protection
Clear, documented steps are your best defence later
The Bottom Line
You don’t avoid risk by doing nothing.
You just shift the risk into a space that’s harder to defend.
Because when things go wrong, the question won’t be:
“Why did you act?”
It will be:
“Why didn’t you?”
Our Workplace Lawyers at South Geldard Lawyers have essential expertise in preventing these issues occurring in the first place and helping with the legal issues when they do occur. Feel free to reach out on 1800 329 448 or via email to Jonathan Mamaril, Director at jmamaril@southgeldard.com.au. All Employers receive an obligation free consultation.
