A slippery slope: WHS rights and adverse action

Under the general protections provisions of the Fair Work Act 2009 (Cth) (FW Act), employers are prohibited from taking adverse action against an employee (such as dismissing them from employment) because they have a workplace right or because they have exercised or chosen not to exercise that right.

Workplace rights can be any of the following:

  • a benefit, role or responsibility which is provided under a workplace law or instrument;
  • the ability to initiate or participate in a process or proceedings under a workplace law or instrument; or
  • the ability to make a complaint or inquiry, whether that is to another person or body to seek compliance with a workplace law or instrument, or a complaint or inquiry about their employment.

In the recent decision of McNamara v Era Pacific Pty Ltd [2021] FCCA 1689, the Federal Circuit Court of Australia (the FCCA) was required to consider these provisions of the FW Act and determine whether or not an employee had been dismissed from his employment because he had exercised a workplace right provided to him under work health and safety legislation.

The employee was employed as a truck driver and his primary duties were to transport scaffolding equipment to job sites. In April 2020, the employee was directed to perform a different task, to pick up a 10-metre steel beam from a supplier and deliver it to a client’s residential premises in his heavy rigid crane truck.

When the employee picked up the steel beam, the supplier loaded it onto the truck but due to its large size, it had to be positioned in a way that obscured the operation of the crane on the truck. When the employee arrived at the client’s premises, he noticed that the driveway to the house was steep and narrow and that there were overhead power lines. He became concerned that he would have to drive the truck up the driveway and use the crane to remove the steel beam, and that he might hit the overhanging power lines in doing so. He was also concerned that, once the tension was released, the steel beam might slide off the back of the truck and hit either a car or pedestrian on the road below.

The employee was concerned that this was not a task he normally did and that he could not complete the task alone in a safe manner without risk of injury or damage to himself or others. He therefore called his supervisor who agreed to attend the client’s premises and assist him in completing the task.

In June 2020, the employee was directed to perform the task again. This time, the employee advised the company’s managing director that the task was too difficult and that he did not wish to do it. As the employee’s supervisor was on leave, the employee sought the assistance of the managing director to complete the task. He discussed the safety issues that had arisen from the first delivery, including that the beam obstructed the use of the crane on the truck due to its large size.

The managing director agreed to accompany the employee in picking up the steel beam and suggested that the employee simply drive the truck with the crane fully extended so that the steel beam did not obscure its use. The employee declined to do this because he did not consider it safe to drive the truck in that way. The managing director gave evidence that he believed the employee was simply picking and choosing which jobs he did and did not want to do.

The employee and managing director then became involved in a heated argument in which the managing director said to the employee, “If you can’t do the f*cking job, f*ck off.” The employee was then escorted from the yard. Only a few hours later, the employee received a phone call from the employer offering to re-employ him on the condition that he be issued a written warning and that he serve a 6-month probationary period. The employee ultimately declined the offer.

The FCCA was satisfied that the employee had exercised a workplace right provided by s 84 of the Work Health and Safety Act 2011 (Qld) to cease or refuse to carry out work if he had a reasonable concern that to carry out the work would expose him to a serious risk to his health or safety, which emanated from an immediate or imminent exposure to a hazard.

The FCCA considered the employee’s concerns to be reasonable and was not convinced by the employer’s argument that the employee had refused to do the task because he simply did not want to do it or that the employee hadn’t proven that the task was unsafe or exposed him to risk of injury. The FCCA noted that the managing director had not been to the supplier’s premises or the resident’s premises – he had simply dismissed the employee’s complaint without further investigation.

The FCCA was satisfied that the employee was dismissed because he had exercised this workplace right and the employer was ordered to pay compensation for both economic and non-economic loss in the amount of $21,578.54.

In addition to the above, the FCCA ordered pecuniary penalties totalling $6,600.00 for the employer and $1,320.00 for the managing director. In this regard, the FCCA was particularly concerned that the employee had raised legitimate safety concerns and the managing director chose not to investigate those concerns and instead verbally abused the employee and further, the managing director had admitted that he would have investigated those concerns if they had been raised by any other employee.

Lessons for employers

Employers have a significant obligation under work health and safety legislation to minimise the risk to work health and safety as far as reasonably practicable. This includes allowing workers to raise concerns about legitimate health and safety concerns and addressing those concerns as soon as possible. As can be seen from this decision, any adverse action taken by an employer because an employee has raised those concerns will most likely be found to be in breach of the general protections provisions of the FW Act.

Shane Koelmeyer is a leading workplace relations lawyer and Director at Workplace Law. Workplace Law is a specialist law firm providing employers with legal advice, training and representation in all aspects of workplace relations, employment-related matters and WH&S.

02 9256 7500 | sydney@workplacelaw.com.au

Information provided in this blog is not legal advice and should not be relied upon as such. Workplace Law does not accept liability for any loss or damage arising from reliance on the content of this blog.

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