Lessons for employers from Fox v NQM Gold Pty Ltd

Pay transparency is no longer just a cultural issue — it is a legal compliance obligation. A recent decision of the Federal Circuit and Family Court of Australia confirms that dismissing (or disadvantaging) an employee for discussing remuneration can amount to unlawful adverse action.

In Fox v NQM Gold Pty Ltd [2024], the Court found that an employer unlawfully dismissed a senior employee for exercising protected workplace rights under the Fair Work Act 2009 (Cth) (FW Act).

What happened?

Mr Fox commenced employment with NQM Gold in July 2023 as a Senior Environmental Advisor. During his short period of employment, he:

• participated in Emergency Response Team (ERT) training, which attracted a quarterly allowance; and
• spoke with colleagues about new employment contracts, encouraging them not to sign agreements that reduced their hourly rates.

Shortly after these discussions:

• Mr Fox was told he had been “placed on the reserve list” for ERT training;
• he raised concerns about his removal from the training program; and
• within weeks, he was stood down, issued with a show-cause notice and summarily dismissed during his probationary period.

The Court’s findings

The Court found that NQM Gold dismissed Mr Fox because he exercised workplace rights protected under the FW Act, including the right to:

• discuss remuneration and employment terms with other employees; and
• make complaints or inquiries about workplace conditions (in this case, access to ERT training).

Key findings included:

The right to discuss pay is protected
The Court confirmed that discussions about remuneration are protected by the FW Act, even if an employee does not explicitly ask others about their pay.

The employer’s explanation lacked credibility
Claims that Mr Fox was dismissed due to performance issues were not supported by documentation, warnings or contemporaneous evidence.

A clear causal link to dismissal
The employer raised the pay discussions and training complaints during the show-cause process, supporting the conclusion that these matters were real and operative reasons for termination.

Because the employer failed to rebut the statutory presumption under section 361 of the FW Act, the dismissal was found to contravene the general protections provisions.

Key takeaways for employers

• Respect employees’ right to discuss pay
  Since the 2023 amendments to the FW Act, pay secrecy clauses are void. Adverse action linked to pay discussions exposes employers to significant risk.
• Properly document performance concerns
  If performance is genuinely an issue, concerns must be documented and addressed early — not raised for the first time after protected conduct occurs.
• Train managers and supervisors
  Managers need to understand what constitutes a “workplace right”, including the right to raise concerns or ask questions without fear of reprisal.
• Probation is not a free pass
  Employees on probation are still protected by general protections laws. Fairness and lawful decision-making remain essential.

Why this case matters

This decision reinforces that workplace rights apply at every stage of employment — including during probation. Even informal conversations about pay or workplace entitlements can trigger significant legal risk if they influence disciplinary or termination decisions.

This case is a timely reminder: discussing pay is a lawful right, not a disciplinary issue.