In a recent Federal Circuit Court decision, an employer and its director were found to have breached the Fair Work Act 2009 (Cth) (FW Act) by dismissing an employee who exercised his statutory work health and safety right to refuse to perform a task that he reasonably believed exposed him to an immediate serious risk to his health.

In McNamara v Era Pacific Pty Ltd (2021), the Court found that the employee’s employment was terminated because he exercised a workplace right. It imposed penalties on the employer and its director, and made orders including compensation to the employee.

Case background

Mr Michael McNamara worked as a truck driver and scaffolder for ERA Pacific Pty Ltd (ERA Pacific) for about 8 years. His role involved driving a heavy rigid crane truck owned by ERA Pacific and transporting scaffolding equipment to job sites.

In April 2020, Mr McNamara was directed by his supervisor, Mr Ashley Trezise, to collect a 10-metre steel beam from a supplier at the Port of Brisbane and deliver it to a client’s premises. This was an unusual task that Mr McNamara had not performed before. When Mr McNamara got to the Port of Brisbane, an employee of the supplier helped him place the steel beam at the back of the truck using a forklift and steel pallets. Due to the length of the steel beam, it was positioned in a way that obscured the operation of the crane, and the length of the steel beam extended beyond the length of the truck.

When Mr McNamara arrived at the client’s premises with the steel beam, he determined that moving the steel beam would be difficult because the driveway to the client’s premises was steep, narrow and sloping, and there were powerlines overhead. Mr McNamara contacted Mr Trezise for assistance who later came to help perform the task, which took 2.5 hours.

On 18 June 2020, Mr McNamara was again directed to collect a 10-metre steel beam from the Port of Brisbane and deliver it to the same client’s premises as in April. As Mr Trezise was away on leave, Mr Malcolm Lightfoot, the sole director of ERA Pacific, directed Mr McNamara. Mr McNamara told Mr Lightfoot that he was reluctant to perform the task as it was unsafe and that he would need assistance based on his previous experience in April. Mr McNamara asked Mr Lightfoot to help, which Mr Lightfoot refused. There was then a heated conversation for about 30 minutes when Mr Lightfoot threatened to terminate Mr McNamara’s employment for refusing the work. Mr Lightfoot did eventually terminate Mr McNamara’s employment with ERA Pacific.

Decision

The Court accepted that pursuant to section 84 of the Work Health and Safety Act 2011 (Qld), Mr McNamara had a workplace right to cease or refuse to carry out work if he had a reasonable concern that carrying out the work would expose him to a serious risk to his health or safety. The Court was satisfied that Mr McNamara in fact held such a reasonable concern given the high-risk nature of the task and his experience from the previous occasion undertaking the task.

The Court found that Mr McNamara also separately exercised a workplace right when he refused to perform the task in June without assistance, which constituted the making of a complaint under section 341(1)(c) of the FW Act. Mr Lightfoot simply dismissed this complaint without investigating it further because in Mr Lightfoot’s view, Mr McNamara had merely chosen not to perform the task that “he was paid to do”.

The Court was satisfied that there was a connection between Mr McNamara’s employment being terminated and his exercising his workplace rights. The exercising of those rights was the substantial and operative reason that Mr Lightfoot terminated Mr McNamara’s employment. As such, ERA Pacific was found to have contravened section 340(1) of the FW Act in taking adverse action against Mr McNamara. Mr Lightfoot was held personally liable as well, being a person knowingly involved in the contravention by ERA Pacific.

The Court was satisfied that the contravention by ERA Pacific and Mr Lightfoot was serious as it was deliberate, even if not pre-meditated. The Court imposed penalties on both ERA Pacific and Mr Lightfoot in the amounts of $6,600 and $1,320 respectively, and ordered ERA Pacific and Mr Lightfoot be jointly and severally liable to pay compensation of $19,463.55 plus interest to Mr McNamara, as well as superannuation.

Takeaway

You must be cautious when considering taking any adverse action against an employee, such as termination of employment, in circumstances where the employee raises legitimate safety concerns at work. Properly investigate the concerns and, if reasonable, address them.