Dismissed employee wins reinstatement after dismissal linked to workplace injury

Dismissed employee wins reinstatement after dismissal linked to workplace injury

The Fair Work Commission has ordered the reinstatement of a construction worker after determining that his termination was likely linked to a workplace injury and not other reasons that the employer referred to in his dismissal.

The employee ‘CWS’ was employed as a Construction Worker by EQ Constructions Pty Ltd (EQ Constructions) from 1 March 2022 until his dismissal on 14 November 2022. On 9 August 2022, his driver’s licence was suspended, and he subsequently lost his licence on either 28 September or 10 October 2022.

From the time of the initial suspension, instead of driving to work, he caught public transport. Although he was sometimes late for work, he was never cautioned about it, and his principal work site was near a train station.

On 12 October 2022, CWS suffered a psychological workplace injury which he reported to the site health and safety officer (HSO) and ceased working. He attended his doctor on 13 and 29 October and 11 November 2022 and provided his employer with medical certificates in relation to his absence from work.

He spoke to EQ Constructions’ WHSE Manager on several occasions and was told to stay at home and arrange counselling for his injury.

On 23 October 2022, CWS complained to the HSO about several matters, including being ‘stood off’ the site, being asked to drive a vehicle for which he did not have a licence, working whilst his co-worker watched pornography and played poker machines, and being given insufficient training and instruction.

On 7 November 2022, the company’s General Manager wrote a Show Cause letter to him, asserting that his licence suspension meant he could no longer perform the inherent requirements of his role. The letter also raised ‘other concerns’, including pending charges in relation to the alleged possession of unlawful pornography and alleged possession of a firearm.

The General Manager also asserted that these charges had real potential to cause the business reputational harm and advised him that they were considering termination of his employment.

The following day CWS sent a formal response confirming his intention to return to work once medically fit, his willingness to use public transport to get to work until his licence was reinstated, and that two individuals and all site foremen were aware of the firearms charges noting he had been allowed to leave work early every Monday to meet his bail conditions.

After further correspondence between the parties, CWS was dismissed without notice on 14 November 2022 for serious and/or wilful misconduct.

In her determination, Commissioner Sarah McKinnon was scathing of the employer’s behaviour towards the worker, noting,

“I find no valid reason for the dismissal of Mr (S). In my view, the allegations against him were confected in a bid to justify dismissal after Mr (S) ceased work due to his injury”.

The Commissioner further noted that,

“The notion that Mr (S) could not perform the inherent requirements of his job because he could not get to work ignores the fact that he had been doing that for approximately two months” and “I accept Mr (S’s) evidence that site management were aware of his firearms charges before he commenced employment”.

Commissioner McKinnon ordered his reinstatement.

CWS v EQ Constructions Pty Ltd (U2022/11309) 23 February 2023

For queries about investigations, misconduct allegations, workplace absences, or other employment questions, please contact Dean Cameron at Workforce Advisory Lawyers – We Know Employment Law on 130 925 529, 0417 622 178 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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