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September 2021

Exercising WHS rights leads to adverse action

Exercising WHS rights leads to adverse action

The Case

McNamara v Era Pacific Pty Ltd (2021)

Era Pacific Pty Ltd (Era) employed Mr McNamara as a truck driver. In April 2020, Mr McNamara was directed by Era to collect a 10-metre steel beam and deliver it to a client’s residential premises. The beam was so large it obscured the operation of the crane on Mr McNamara’s truck.

The client’s residential premises had a steep and narrow driveway with overhead powerlines. There was a risk the powerlines could be struck using the crane. There was also a risk the beam could come loose and may injure someone or damage property. Mr McNamara assessed that he could not perform the job safely and called his supervisor, who agreed to assist him.

In June 2020, Mr McNamara was again directed to deliver another steel beam to the client’s property. Mr McNamara complained about the work health and safety (WHS) issues that he had discovered when performing the task the first time. As the supervisor who had previously assisted Mr McNamara was on leave, the managing director agreed to assist. The managing director suggested to Mr McNamara that he drive the truck with the crane fully extended, so that the steel beam did not obstruct his view. Mr McNamara refused on the basis it was unsafe.

The managing director told Mr McNamara that he was essentially being difficult and picky. This resulted in a heated and abusive argument where the managing director told Mr McNamara that he could leave if he couldn’t do the job. Mr McNamara was escorted off site. Era later rang Mr McNamara and offered him his job back provided he serve a 6-month probation period. Mr McNamara refused.

Mr McNamara commenced a general protections claim.

The Verdict

The Federal Circuit Court (FCC) held:

  • Mr McNamara had exercised a workplace right under WHS legislation and his concerns about the WHS issues were valid;
  • Era had not investigated Mr McNamara’s WHS concerns by undertaking a risk assessment, and had just dismissed them completely;
  • Mr McNamara had been dismissed for exercising a workplace right and abused for raising legitimate WHS concerns; and
  • Era should pay Mr McNamara $21,578.54 in compensation, $6,600 in penalties for Era’s conduct and $1,320 for the managing director’s conduct.

The Lessons

WHS legislation requires employers to eliminate or minimise WHS risks as far as reasonably practicable. Where a worker raises a WHS risk, it needs to be investigated and appropriate action taken, if necessary. You should never ignore an employee who raises such risks or terminate their employment for raising them. To do so exposes you to general protections claims and other legal action.

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