Stone cold: Court finds that adverse action was taken against employee due to his silica disease diagnosis

The Fair Work Act 2009 (Cth) (FW Act) prohibits employers from dismissing an employee from their employment because they have exercised a workplace right or because of a discriminatory reason, such as  physical or mental disability.

In Ruttley v Willis Brothers Installation (Qld) Pty Ltd [2022] FedCFamC2G 430, the Federal Circuit and Family Court of Australia (the Court) was satisfied that a stone benchtop manufacturer and installer (the Employer) took adverse action against an employee by dismissing him from his employment.

The employee had commenced employment with the Employer in 1997 initially as an apprentice and was most recently employed as a Production Manager. In January 2016, the employee became a director of the Employer. The employee also held a Queensland Building and Construction Commission Licence (QBCC) stonemasonry licence as nominee supervisor for the Employer.

In November 2018, the employee was diagnosed with lymph node silicosis and lodged a workers compensation claim which was accepted in January 2019.

In accordance with a direction from Work Health and Safety Queensland, employees who were diagnosed with silicosis were to refrain from working in workplaces with silica dust. The employee claimed that despite this direction, another director of the Employer, Mr Willis had bullied him and forced him to work on the factory floor. The relationship between the employee and Mr Willis deteriorated culminating in an incident on 14 January 2020 between the pair. The employee subsequently left the workplace and did not return to work. The employee was certified as unfit for work claiming it was due to stress caused by Mr Willis.

The employer subsequently engaged in the following conduct:

  • Requested that the employee surrender his other motor vehicle and advised the employee that his licence allowance would not be paid while he was on sick leave.
  • Reduced the employee’s wage, disconnected his mobile phone and cancelled his fuel card.
  • Ceased paying the employee his weekly wage and claimed that the employee had exhausted all his leave entitlements.
  • Refused to provide the employee a reconciliation of his leave entitlements in response to his request.
  • Passed a resolution removing the employee as a director of the company from 1 May 2020.

On 11 May 2020, the employee’s employment was terminated with the letter detailing that the termination was because he had taken excessive leave.

The employee alleged that the Employer had dismissed him from his employment because:

  • He exercised workplace rights to make a workers compensation claim and to make a complaint or inquiry in relation to the payment of his leave entitlements; and
  • He suffered from a physical disability or lymph node silicosis.

The Court accepted the evidence of the employee over the evidence of the Employer, in particular finding that Mr Willis was not a credible witness.

The Court rejected that the Employer’s stated reason for the dismissal of the employee was the real reason for the termination of his employment.

Rather, the Court found that, when Mr Willis became aware of the employee’s diagnosis, he formed a view that the employee would not be able to continue as a Production Manager due to his physical disability and went about trying to exit the employee from the business. This included attempting to become the QBCC nominee supervisor himself and later in December 2019 appointing his brother as a director, who became the QBCC nominee supervisor. The Court found that it was at this point, the Employer no longer required the employee in the business.

Accordingly, the Court was satisfied that the Employer had terminated the employee’s employment because of his physical disability. In particular, the Court noted that the Employer failed to provide any evidence that the employee was unable to perform the inherent requirements of a Production Manager.

The Court was also satisfied that the employee was dismissed because he exercised workplace rights to make a workers compensation claim and seek information about his accrued leave entitlements.

The Employer was ordered to pay to the employee compensation in the total amount of $162,631, which included $142,631 for past economic loss and $20,000 for distress, hurt and humiliation.

The Court invited the parties to provide submissions as to the pecuniary penalty to be imposed for contraventions of the FW Act.

Lessons for Employers

The FW Act provides protections for employees against action taken by employers for a prohibited reason. In addition to being ordered to pay damages for past and future economic loss, a breach of the adverse action provisions attract a pecuniary penalty, currently a maximum of $13,200 for individuals and $66,000 for companies for each contravention.

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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