Fair Work Australia questions Toll's level of concern towards labour hire staff during unfair dismissal case involving injured warehouse worker
By Brad Gardner | August 17, 2012
Toll’s warehousing division has been accused of not caring about the welfare of labour hire staff working in one of the company’s Melbourne warehouses.
Fair Work Australia Commissioner Michelle Bissett yesterday criticised Toll Customised Solutions over the running of its Knoxfield warehouse, which is made up of a combination of Toll employees and outside hire.
Bissett questioned the firm’s commitment to health and safety during the unfair dismissal case of Noel Ellis, who Toll sacked for failing to disclose a pre-existing injury on his pre-employment medical form.
Ellis began working in the warehouse in 2001 through a labour hire agency and filled out a medical form when he became a direct Toll employee in 2005.
“Toll says that the failure of Mr Ellis to disclose his pre-existing back injury is a significant matter given that he was employed as a storeperson and that a significant part of his role was manual in nature,” Bissett says.
“At no time prior to 2005 was Mr Ellis asked about any injuries he may have that might affect his ability to fulfil his duties without harm to himself or to anyone else. It would appear from this that Toll’s concern only extends to its direct employees and not others who may work in the warehouse.
“A true commitment to the capacity of those in its warehouse to fulfil their duties without harm to themselves or to anyone else must extend beyond those directly employed if the true purpose of the pre-employment medical is about the welfare of the employee and others.”
Toll has issued a response to Bissett’s accusation, saying there was no evidence presented during the hearing that the company disregarded people’s previous medical histories.
“We take exception to some of the comments contained in yesterday’s ruling,” a spokesman for Toll says.
“Toll is committed to ensuring that all of its workforce, whether permanent, casual, labour hire or contractors, are fit to perform their duties, and all of the labour providers that partner with Toll are aware of Toll’s requirement to ensure all of their employees are fit to perform their duties.”
Ellis injured his back in February this year and launched a workers compensation claim. During its investigation into the workplace accident, Toll discovered he had suffered a disc injury in his teens which was not declared on his medical form.
Toll accused Ellis of deliberately trying to mislead the company by failing to list the injury on the form and also failing to disclose it during Toll’s investigation. The company sacked him for gross misconduct on March 22.
While Bissett says Ellis should have revealed his previous injury, she rejected Toll’s assertion he set out to deliberately mislead the company.
“No plausible explanation was given as to why Mr Ellis would deliberately mislead the Respondent in this way. He had no reason to think he was not fit to work in the warehouse – he had been doing the work, albeit through a labour hire agency – for close to four years without incident or question,” she says in her written judgment.
“Further, there is no evidence that suggests that, at the time of completing the pre-employment medical form, Mr Ellis was told that any failure to disclose past injuries would lead to disciplinary action.”
The 49-year-old Ellis says he did not disclose his previous back injury because he did not claim compensation for it. He also told Toll his failure to declare the injury on his medical form was an oversight.
Bissett ordered Toll to reinstate Ellis and compensate him for lost wages. Toll argued against reinstating Ellis on the basis the relationship between the two had broken down due to a lack of integrity on his part.
However, Bissett pointed to the evidence of Toll Operations Manager Phillip Dempster, who works at Knoxfield and managed Ellis.
“Mr Dempster gave evidence that he considers Mr Ellis to have been honest at work in the 10 years or so that he has known him,” she says.
