Adverse action claim succeeds after refusal to perform unsafe work

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Adverse action claim succeeds after refusal to perform unsafe work

A Queensland truck driver and scaffolder who was sacked after refusing to perform work he considered unsafe, has won substantial compensation from his former employer in a recent adverse action claim.

The employee had commenced work for ERA Pacific Pty Ltd (ERA) as a casual scaffolder in 2012. In January 2019, his employment was converted to a permanent full-time role as a truck driver and scaffolder. He held several licences, including intermediate scaffolding and high-risk work for confined spaces.

In April 2020, the employee was directed by ERA’s sole director (the director) to collect a steel beam from the Port of Brisbane and deliver it to a client’s house in the inner Brisbane suburb of Bulimba. The beam was 10 metres in length and very heavy. This was an unusual task, which the employee had never performed before.

When the employee arrived at the site, he immediately had several concerns with the unloading of the beam. These included identifying the driveway as being narrow and steep, the presence of nearby overhead powerlines, the potential for the beam to slip off the truck, and the lack of any other resources to assist him in the task.

Consequently, he was concerned that the task could not be performed safely and would potentially expose him to a serious safety risk, particularly with respect to exposure to the power lines. He sought assistance from his supervisor, and the task was completed safely.

On 18 June 2020, he was again requested to collect a similar size beam and again transport it to a client’s premises. He told the director that he would not complete the task because it was dangerous. The director became agitated and angry and said to him, “you’re a truck driver, and it’s your job”. Shortly after this encounter, he said to the employee, “if you do not perform the work, your employment with ERA would be terminated”. The director then terminated him.

In the hearing before Federal Circuit Court Judge Tonkin, the employee claimed that both ERA and the director took adverse action against him for exercising a workplace right. That right was the ability 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.

Justice Tonkin agreed. As he stated in his decision,

“(the employee) had a workplace right because he was entitled to the benefits of safeguards afforded by the WHSA to cease or refuse to carry out work if he believed it to be unsafe … In addition, he had the right to a safer workplace and work environment and the utilisation of safe systems of work”.

He further commented, “I am satisfied that (the employee’s) employment was terminated because he exercised a workplace right to refuse to perform work he considered on reasonable grounds would expose him to a serious health or safety risk”.

ERA was ordered to pay over $23,000 in compensation to the former employee and an amount exceeding $5,500 to the Commonwealth.

M v Era Pacific Pty Ltd [2021] FCCA 1689 (23 July 2021)

For questions about adverse action, safety, or other employment questions, please contact Dean Cameron at Workforce Advisory Lawyers – We Know Employment Law on 0417 622 178, 1300 WAL LAW or via email to dean.cameron@workforceadvisory.com.au

Disclaimer: This information is provided as general advice on workplace relations and employment law. It does not constitute legal advice, and it is always advisable to seek further information regarding specific workplace issues. Liability limited by a scheme approved under professional standards legislation.

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