The general protections under the Fair Work Act 2009 have potentially far reaching implications for employers. Section 340 of the Act provides that a person (for example, an employer) must not take adverse action against another person (for example, and employee) because that person has exercised a workplace right or proposes to exercise a workplace right.
A workplace right has a broad meaning and includes when a person is entitled to exercise a workplace law, such as an award or agreement.
Adverse action can mean dismissing an employee, refusing to employ someone, discriminating against a person or causing injury to a person.
In a recent case decided in the Federal Circuit Court of Australia, the Applicant relied on a workplace right pursuant to the Occupational Health Safety and Welfare Act. The Applicant was a train driver of some 37 years standing. He was employed by the Respondent and commenced work in April 2011. He was required to undertake induction and training with the Respondent and his employment continued without incident until he was involved in a train accident in October 2011. The train the Applicant was driving collided with another train. While no one was injured, the accident caused $5 million damage.
An investigation took place and the Applicant was called to a meeting in November 2011 where he was given an official warning. Following the meeting, the Applicant received a letter advising him that he would be assessed whilst performing his driver duties. He was given a date for the assessment in late November 2011.
Two days before the date of the scheduled assessment he received a telephone call from a fellow employee informing him that he would be working a relay service commencing that day and his assessment would take place whilst driving the relay service.
As the Applicant commenced to drive the train that evening he became extremely anxious and felt unwell. He told the court that he felt like vomiting. He told his colleague (the assessor) that he felt violently unwell and he was unable to drive the train. As a result of his failure to drive the train that evening, his services were terminated.
The Applicant commenced an action against his former employee relying on s340 of the Fair Work Act. The Court found that the employer had taken adverse action in terminating the Applicant’s employment. The Court said that the Applicant had intended to exercise a workplace right, (the Occupational, Health, Safety and Welfare Act) to take reasonable care to protect his own health and safety at work, as well as the health and safety of other persons by not driving the train while being mentally or physically ill.
The Court further found, that the employer had terminated the Applicant’s services in breach of the Disability Discrimination Act because he suffered a mental and physical disability