Labour-hire worker succeeds in adverse action claim after being excluded from mine site
A labour-hire worker, excluded from access to a mine site, has succeeded in an adverse action claim on the basis that concerns he raised about safety matters were his exercising of a workplace right.
The employee, ‘DM’, commenced work on or about 23 October 2017 with labour-hire company WorkPac as a Mobile Plan Operator on a casual basis. From 5 June 2019 until 16 January 2020, WorkPac deployed him to work exclusively at the Daunia Coal Mine (the mine) located near Moranbah in Central Queensland, operated by B M Alliance Coal Operators Pty Ltd (BMA).
The events that led to his exclusion from the site were related to several safety issues at the mine.
On 6 December 2019, there was severe adverse weather at the mine, including a lighting strike. Despite having a Severe Weather Procedure in place, operations did not cease throughout the lightning event. The following day DM was rostered to work a night shift and attended the scheduled daily pre-start, where the lightning strike was discussed.
DM complained at the pre-start, amongst other related issues, about the failure to cease work during the lightning strike, stating that it endangered workers’ health and safety. At the end of his shift, he was summoned to a meeting with his supervisor and subsequently with the Open Cut Examiner.
Shortly after the commencement of his next shift, DM placed an ‘information’ tag on a truck he was allocated to drive as he had noticed an oil leak coming from the truck. He alerted his supervisor, who advised him to place an ‘out of service’ tag on the truck, as the ‘information’ tag was the incorrect tag. DM placed the ‘out of service’ tag on the stairs of the truck, which was not in accordance with the Isolation and Tagging SOP (the SOP). While driving with his supervisor, he also claimed to have observed a water truck pass by a stationary truck on the right-hand side of a keep left sign.
Later in the shift, DM was advised that the truck had been fixed, and a separate supervisor instructed him to remove the tag. He refused, advising the supervisor that he was not authorised under the SOP to do so and that only a ‘fitter’ was authorised to remove the tag.
On 10 December 2019, DM was advised by WorkPac that he was being stood down with pay pending an investigation into allegations of misconduct (breaching the SOP). On 16 January 2020, he received two letters from WorkPac, one advising him that BMA had revoked his access to the mine and the other advising him that the allegation of misconduct had been substantiated and he would be issued with a written warning.
Federal Court Justice Berna Collier accepted DM’s claim that the incorrect placing of the tag,
“was inadvertent and not deliberate. I did not consider that Mr (M’s) conduct in breaching the Isolation and Tagging SOP was so serious as to warrant termination of his employment. However, it was a breach of the Isolation and Tagging SOP. For those reasons, I considered that a first written warning was an appropriate disciplinary outcome”.
Justice Collier also found that several of the comments made in evidence by site management seemed implausible, even to the extent that some of it could be regarded as dishonest.
In sharp contrast, she noted,
“On balance, I prefer Mr (M’s) version of the events of 8 and 9 December 2019. I consider Mr (M) to be a credible witness who took a very precise view of the world and his work, in particular to issues relating to the workplace. I also note that in his affidavit, and during cross-examination, he gave evidence on matters which to him were of primary and of personal importance”.
In summary, Justice Collier determined that Mr M was able to make a complaint about the manoeuvring of the water truck, acted consistently with the SOP when refusing to remove the tag, and was therefore exercising his workplace rights.
Having upheld the adverse action claim, Justice Collier invited the parties to submit applications to determine the applicable penalties to be received by DM.
For queries about safety, adverse action, investigations, 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 email@example.com
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.