Australia: Safety First: Adverse Action in the context of work health and safety

by DLA Piper
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SUMMARY
The recent Federal Court decision in AMWU v Visy Packaging Pty Ltd (No 3) [2013] FCA 525 demonstrates the careful balancing act an employer faces when disciplining an employee for misconduct where the employee has raised safety concerns.  The case also highlights how a wide range of actions by an employer to manage an employee could be considered 'adverse action' under the Fair Work Act 2009 (Cth), including:

  1. commencing an investigation into an employee's conduct;
  2. suspending an employee from employment on full pay; and
  3. giving an employee a written warning.

BACKGROUND
Jonathan Zwart was employed by Visy Packaging Pty Ltd (Visy) in the role of a fitter and machine setter.  Mr Zwart was a member of the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (AMWU).   Relevantly, he was also an elected health and safety representative for Visy under the Occupational Health and Safety Act 2004 (Vic).

Forklifts used at Visy's workplace were equipped with 'warning beepers' as a safety measure to manage the risk of a forklift causing injury on the noisy factory floor.

Mr Zwart was surprised by a forklift whilst performing his work duties because he did not hear its warning beeper. He then 'tagged' the forklift to prevent it being used. Visy had implemented a 'tagging process' as a temporary measure to stop unsafe equipment presenting a risk of injury to workers.

Visy's management then convened a series of meetings with Mr Zwart to resolve his concerns over the forklifts. An inspector from the Victorian safety regulator also met with Mr Zwart. These meetings did not resolve the issue and instead resulted in Mr Zwart tagging out another forklift, which Visy proposed as a replacement for the first that had been tagged out.

Visy was concerned that Mr Zwart had been uncooperative and untruthful during the meetings. In response to this concern, Visy's Operations Manager directed that an investigation be commenced into Mr Zwart's conduct and suspended him on pay until this investigation was completed.

The investigation identified deficiencies in relation to how Mr Zwart acted, which caused Visy to issue a final written warning notifying him that he had engaged in serious misconduct and further instances of misconduct could result in the termination of his employment.

Mr Zwart and the AMWU commenced proceedings in the Federal Court against Visy and two managers of Visy claiming they had taken 'adverse action' against Mr Zwart in breach of the general protections of the Fair Work Act 2009 (Cth).

ISSUES
The key issues were:

  1. whether Visy's actions in investigating and disciplining Mr Zwart constituted 'adverse action';
  2. whether Mr Zwart was exercising a 'workplace right' at the relevant time; and
  3. whether adverse action was taken because Mr Zwart exercised a workplace right.

FINDINGS

Ultimately, the Federal Court found that Visy and the Operations Manager had taken adverse action against Mr Zwart. The penalty as against Visy, and the Operations Manager, is to be determined at a hearing scheduled for 9 September 2013.

'Adverse Action'
The Federal Court found the following conduct was 'adverse action' under the Fair Work Act 2009 (Cth):

  • Conducting an investigation into Mr Zwart's conduct - because the investigation could result in dismissal and therefore made his employment less secure.
  • Suspending Mr Zwart from employment - because while suspended, he could not enjoy the benefit of interacting with workmates, and therefore suffered a "deterioration in the advantages otherwise enjoyed".
  • Issuing Mr Zwart with a final warning - because this reduced the security of future employment.

'Workplace Right'
The Federal Court decided Mr Zwart was exercising relevant workplace rights by inspecting and tagging the forklifts and attending meetings to resolve the issue because these actions related to his powers under the OHS Act.  

Link between adverse action and workplace right
The Federal Court determined that Visy and the Operations Manager failed to discharge the 'reverse onus' and prove the adverse action was not taken because of Mr Zwart's exercise of a workplace right.

Visy and the Operations Manager claimed the action of investigating and disciplining Mr Zwart were taken because of Mr Zwart's unsatisfactory conduct in the meetings and not because he tagged the forklifts.  The evidence of the managers who made the decision to investigate and discipline Mr Zwart was that they acted only because of Mr Zwart's non-cooperation.  Importantly, the managers strongly denied that they acted because Mr Zwart had tagged the forklifts. There was no direct evidence to the contrary.

The Federal Court did not accept the managers' evidence and found that Visy's managers attempted to disguise the actual motivation for the actions they took in relation to Mr Zwart.  

CONCLUSIONS
This case highlights the importance of properly understanding the work health and safety powers of employees and the potential risks of disciplining employees who exercise these powers.

Employers should proceed with caution when taking any action, particularly disciplinary action, that could adversely affect the employment of a person who has exercised a workplace right. If challenged, the employer will need to be able to prove the reason for the disciplinaryaction was not because of the exercise by the employee of the workplace right.

Employers should also review their work health and safety procedures to:

  • ensure consistency with the applicable legislation;
  • make any procedures relevant to the exercise of statutory powers under work, health and safety matters clear; and
  • assess whether specific resolution procedures should be developed to deal with disputes about safety matters.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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