Adverse action and workplace safety

The Federal Court (Court) has in a decision published in May this year, found that the suspension from duties and subsequent issue of a final warning to an employee for exercising his duties as an Occupation Health and Safety Representative (OHS Representative) constitutes adverse action under section 340(1) of the Fair Work Act 2009 (Cth) (Fair Work Act).

On 8 August 2011, an OHS Representative working at a Visy Packaging Pty Ltd (Visy) production facility in Melbourne tagged two forklifts as being defective due to their reversing beepers not being loud enough.  The effect of tagging the forklifts meant they were removed from service until the reverse beepers were repaired.

Following the tagging and removal of the forklifts from service, a number of meetings were held that day between senior managers at Visy and the OHS Representative responsible for tagging the defective equipment.  The senior managers put forward a number of proposals to resolve the problem.  However, these were rejected by the OHS Representative on the basis that they did not adequately address the problem.  Ultimately, a Victorian Worksafe Inspector directed that the reverse beepers on the forklifts be fixed and the two machines were returned to service later that day.

However, due to the OHS Representative’s failure to accept the alternative proposals put forward by the senior managers, Visy suspended the OHS Representative on full pay while it conducted an investigation into the matter.  Visy stated the purpose of the investigation was to review the “uncooperative” and “obstructive” manner in which the OHS Representative had conducted himself during the meetings.  Whilst the OHS Representative ultimately returned to work, as a result of the investigation, he was issued with a final warning by Visy.

The OHS Representative subsequently brought the adverse action claim in the Court alleging that his suspension and the final warning were motivated by the tagging of the forklifts rather than his actions during the meetings which followed.

In its judgment, the Court was critical of the evidence given at the hearing by the two Visy senior managers and the way in which the investigation was conducted by Visy.

Visy asserted that the investigation could not constitute adverse action because it was conducted in good faith and was not a disciplinary process.  The Court rejected this proposition holding that even a properly conducted investigation brought in good faith might constitute adverse action under the Fair Work Act if brought for a prohibited reason.

Despite Visy’s claim that the investigation was “impartial” and “independent”, the Court highlighted various facts which diminished the investigation’s credibility including that:

  • the Human Resource Manager drafted the parameters of the investigation;

  • management attended the interview with the OHS Representative during the investigation;

  • a legal representative was in contact with the external investigator during the course of the investigation; and

  • the Human Resource department reviewed and revised a draft report before a final report was issued.

In the course of the proceedings, two OHS experts gave evidence that the proposals put forward by Visy were not adequate remedies and confirmed that the OHS Representative acted properly and reasonably in rejecting the proposals.  The Court importantly found that “the OHS Act plainly contemplates that a health and safety representative may have a different view from the employer as to the appropriate resolutions of a particular health and safety issue.”  In this respect, it was said that:

the right to advocate such a different view is an important workplace right and the dialogue it promotes serves an important occupational health and safety function.  In my opinion, actions taken by a health and safety representative in asserting a particular position on a health and safety issue should not lightly be treated as constituting uncooperative or obstructive conduct.

In the final analysis, the Court found that the OHS Representative was exercising a workplace right when exercising his duties under the Occupational Health and Safety Act 2004 (Vic) and therefore, any adverse action taken against the OHS Representative would breach the Fair Work Act. 

The Court has still to hand down a decision on penalties in relation to Visy’s breach.  However, the rationale of the decision is clear, namely, that:

  • an employee exercising duties under OHS legislation may constitute a workplace right for the purposes of the Fair Work Act;

  • an employee is entitled to disagree with an employer in relation to an occupational health and safety issue; and

  • action taken against an employee as a result of raising safety concerns may constitute adverse action under the Fair Work Act.