04 August 2021
5 min read
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In a recent Federal Circuit Court (Court) decision, an employer and its director were found to have breached the Fair Work Act 2009 (Cth) (FW Act) by dismissing an employee who exercised his statutory work health and safety right to refuse to perform a task that he reasonably believed exposed him to an immediate serious risk to his health. The Court found that the employee’s employment was terminated because he exercised a workplace right and imposed penalties on the employer and its director and awarded compensation to the employee.
The case of McNamara v Era Pacific Pty Ltd [2021] FCCA 1689 involved Mr Michael McNamara (Applicant), a truck driver and scaffolder, who worked for ERA Pacific Pty Ltd (Company) for about eight years. At the time of the incident, the Applicant’s role involved driving a heavy rigid crane truck owned by the Company and transporting scaffolding equipment to job sites.
Previous high-risk activity
In about April 2020, the Applicant was directed by his supervisor, Mr Ashley Trezise, to collect a 10 metre steel beam from the Port of Brisbane and deliver it to a client’s premises. This was an unusual task that the Applicant had not performed before.
The Applicant first reached the Port of Brisbane, where an employee of the supplier used a forklift and steel pallets to place the steel beam at the back of the Applicant’s truck. Due to its length, the steel beam was positioned in a way that obscured the operation of the crane and the length of the steel beam extended beyond the size of the truck.
When the Applicant arrived at the client’s premises, he considered that the task of moving the steel beam would be difficult because the driveway to the client’s premises was steep, narrow and at a slope with power lines overhead. The Applicant then contacted Mr Trezise for assistance, who later came to help the Applicant, and they completed the task in 2.5 hours.
The day of the incident
On 18 June 2020, the Applicant was again directed to collect a 10 metre steel beam from the Port of Brisbane and deliver it to the same client’s premises as in April. As Mr Trezise was away on leave, Mr Malcolm Lightfoot, the sole director of the Company, directed the Applicant this time.
The Applicant told Mr Lightfoot he was reluctant to perform the task as it was unsafe and needed assistance based on his previous experience in April. The Applicant asked Mr Lightfoot to assist, but Mr Lightfoot refused. There was then a heated conversation for about 30 minutes when Mr Lightfoot threatened to terminate the Applicant’s employment for refusing to carry out the work. Eventually, Mr Lightfoot terminated the Applicant’s employment with the Company.
The Court accepted that, according to section 84 of the Work Health and Safety Act 2011 (Qld), the Applicant had a workplace right to cease or refuse to carry out work if he had a reasonable concern that carrying out the work would expose him to a serious risk to his health or safety, emanating from immediate or imminent exposure to a hazard. The Court was also satisfied that the Applicant had held such a reasonable concern given the high-risk nature of the task and his experience from undertaking the same job on a previous occasion.
The Court found that the Applicant also separately exercised a workplace right when he refused to perform the task in June without assistance, which constituted a complaint made under section 341(1)(c) of the FW Act. Mr Lightfoot simply dismissed this complaint without investigating further because, in his view, the Applicant had merely chosen not to perform the task which “he was paid to do”.
Furthermore, the Court was satisfied that there was a connection between the Applicant’s employment being terminated and his exercise of workplace rights. The exercise of those rights was the substantial and operative reason that Mr Lightfoot terminated the Applicant’s employment. Therefore, the Company was found to have contravened section 340(1) of the FW Act in taking adverse action against the Applicant. Being a person knowingly involved in the infringement, Mr Lightfoot was also held personally liable.
The Company and Mr Lightfoot’s action was considered serious by the Court as it was deliberate, even if not pre-meditated. Accordingly, the Court imposed penalties on both the Company and Mr Lightfoot in the amounts of $6,600 and $1,320 respectively and ordered both parties be jointly and severally liable to compensate the Applicant with $19,463.55 plus interest and superannuation.
Employers must be cautious when considering taking any adverse action against an employee, such as termination of employment, in circumstances where the employee has exercised a workplace right. This decision is an important reminder that exercising a workplace right is not limited to an employee making a complaint or inquiry concerning their employment, but also includes an employee exercising their rights under a workplace law, including work health and safety law.
If an employee raises legitimate safety concerns at work, employers must properly investigate the concerns and, if reasonable, address the concern. If the concern is not reasonable, an employer may take adverse action against the employee, but it may still be risky. The decision is also important as it reminds employers that they have a duty of care to ensure the health and safety of workers under work health and safety laws.
Authors: Michael Selinger & Jamie Kim
Disclaimer
The information in this publication is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, we do not guarantee that the information in this article is accurate at the date it is received or that it will continue to be accurate in the future.
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