Company made to pay for unsafe work refusal dismissal


Unlawful adverse action leads to $25,000 in compensation and fines

Company made to pay for unsafe work refusal dismissal
The court determined the employee exercised a workplace right to refuse a task on safety grounds

 

A company and director are penalised after a truck driver was dismissed for refusing to perform a delivery task deemed unsafe.

Michael McNamara lodged an adverse action claim against Era Pacific Pty Ltd and director Maclolm Lightfoot after his June 2020 sacking for refusing to collect a steel beam from the Port of Brisbane using a heavy rigid crane truck and deliver it to a client’s premises in Bulimba without assistance.

The Federal Circuit Court of Australia heard the crane truck driver of seven years had previously attended the site and was aware that it had a steep, sloping driveway at a sharp angle to the road with a danger the crane might hit overhead power lines or that the beam could slide off and hit a car or a pedestrian.

The last time he had attended he was accompanied by a supervisor and the task took two-and-a-half-hours for the pair to complete.

McNamara also noted that driving the truck with the steel beam extending beyond the length of the truck obscured the operation of the crane and made the task of unloading the steel beam unsafe on arrival at the client’s premises.

Having refused to do the task, he was he was told to "do the job" regardless in an argument with Lightfoot before being sacked.

He was offered his job back soon after but with the reinstatement of a probationary period and a written warning.

The offer was rejected by on the basis that he could have been dismissed under probation.

Lightfoot argued McNamara was dismissed not because the refusal related to a safety concern, rather not wanting to do the job.


How an underpaying firm was fined after FWO action, here


"The matter was decided at the Federal Circuit Court, who took into consideration that the employee had the workplace right 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 emanating from an immediate or imminent exposure to a hazard," the Queensland Trucking Association (QTA) noted in commentary on the case.

"The court also determined that the employee exercised this workplace right when he refused to collect the steel beam.

"The court also had to consider whether the Employee was dismissed due to exercising the workplace right.

"While the Employer agreed that the dismissal was due to the refusal, they say that the refusal was driven only be the employee not wanting to do the job.

"The courts did not accept this argument, with additional consideration given to the fact that the employer had not investigated whether the tasks was safe to perform and that the employee’s concerns were not reasonable, before dismissing the employee.

"It was determined that the reason for dismissal was due to the employee exercising their workplace right and the case was found in favour of the employee.

"The employer was both required to compensate the applicant and, due to the lack of contrition or remorse he showed, the Director was individually penalised for his actions in dismissing the employee."

Compensation amounted to $19,463.55 plus interest and superannuation, with penalties of $6,600 and $1,320 imposed on company and director respectively.

"While employers have an obligation to provide a safe workplace, employees too have both obligations and rights when it comes to safety," the QTA continued.

"A central right is for an employee to be able to walk away from, or otherwise avoid, an unsafe situation so long as their concern about the risk involved is reasonable.

"If you believe that the employee’s concerns may be unreasonable, then a suitable investigation is required, before any action is taken against the employee for their actions.

"It is never recommended that an employer dismiss an employee on the spot, as even attempts to walk the dismissal back later, might not save you from the legal consequences."

 

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