Employer fined for taking silicosis adverse action against employee

Employer fined for taking silicosis adverse action against employee

The Federal Court has finalised an adverse action claim by imposing significant penalties against an employer who had been found to have contravened the Fair Work Act 2009 with regard to their treatment of an employee.

On 9 June 2022, the Court delivered judgement against Willis Brothers Installation (Qld) Pty Ltd (Willis Bros), finding that the business took adverse action against an employee:

  • by terminating his employment because he was a person with a disability (first contravention);

  • by injuring the employee in his employment because he had exercised a workplace right in making a workers’ compensation claim (second contravention); and

  • by terminating his employment because he exercised a workplace right to make an enquiry in relation to his employment (third contravention).

The employee had worked in the business for some twenty years, from a very young age until he was diagnosed with silicosis in November 2018, linked to his extensive experience working with stone benchtops. Several other employees had been diagnosed with the same condition that derives from exposure to silica dust.

Federal Circuit and Family Court of Australia Judge Amanda Tonkin found that the employer formed an opinion, not supported by any medical evidence, that the employee would be unable to continue working. He subsequently removed his work vehicle, mobile phone and fuel card, suspended his QBCC allowance, failed to pay his personal leave entitlements from 16 March 2020, and ultimately terminated his employment.

Referring to the principal owner of the business, Judge Tonkin noted,

His conduct towards the applicant was both egregious and unjust with little to no regard to the impact on the applicant of the diagnosis of silicosis which had been caused by working in the stone bench top business through exposure to silica dust over a 20 year period”.

Judge Tonkin imposed a pecuniary penalty against Willis Bros of $44,100 for the first and second contraventions, and a further penalty of $31,500 for the third contravention.

She also referred the matter of costs to another judge of the Court for determination.

Ruttley v Willis Brothers Installation (Qld) Pty Ltd [2022] FedCFamC2G 919 (4 November 2022)

For queries about adverse action, workers’ compensation, or other employment questions, please contact Dean Cameron at Workforce Advisory Lawyers – We Know Employment Law on 0417 622 178, 1300 925 529 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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