Case highlights importance of regularly assessing employees' health
The Federal Circuit and Family Court of Australia (FCFCOA) recently dealt with a claim of a worker who alleged that he was dismissed due to a work-related injury and related inquiries concerning his leave entitlements.
Find out about the employer’s lapses in dealing with the worker’s case and the appropriate course of action for HR to prevent a lawsuit of the same nature, especially concerning a worker’s physical disability connected to the workplace’s environment.
The worker started as an apprentice stonemason for an installations company, and over the years, he was promoted to be one of the company’s directors.
According to records, at the start of the apprenticeship, the employer failed to give him “a mandatory face mask,” which forced the worker to tie a t-shirt around his face during work hours.
A year after the worker began this practice of wearing the makeshift gear, the worker’s trade school informed him that an employer is obligated to provide him with the proper equipment and face mask.
He continued to work for the employer and was regularly exposed to silica dust since his work involved installing ceiling fans that caused the circulation of silica particles in the air.
“Safe Work Australia states silica dust ‘is generated in workplace mechanical processes such as crushing, cutting, drilling, grinding, sawing or polishing of natural stone of man-made products that contain silica.’ Silica particles are small enough to cause health issues, including lung damage,” the Victorian Chamber of Commerce and Industry (VCCI) said in a media release.
Due to the onset of silicosis in workers in the same industry, Work Health and Safety Queensland conducted inspections in the employer’s workplace and similar environments.
Later, the worker was diagnosed with lymph node silicosis and filed a claim against the employer. The worker reported that “another director at the company became ‘increasingly aggressive and intimidating’ and directed the employee back to work, despite being aware the employee could no longer perform his pre-injury role,” the VCCI said.
Consequently, the worker filed for stress leave and provided proof regarding his health. “In retaliation, his fuel card was cancelled, company phone diverted, and employee’s business vehicles were also recalled, which significantly reduced his salary package,” the VCCI recalled.
“Throughout the period of stress leave, the employee requested to know his leave balance, however the business failed to respond multiple times. They ultimately stopped paying any of the employee’s allowances and wages,” it added.
Ultimately, the employer removed the worker as a director and terminated his employment, saying that he had taken “excessive leave and because his absence was not based on the Worker’s Compensation and Rehabilitation Act.”
The FCFCOA noted that due to the worker’s diagnosis, the employer believed that he would not be able to perform his role. The court said there was no evidence that justified the termination of his employment. It also pointed out that there was no basis that the worker “had exhausted his accrued leave entitlements.”
Thus, the court ruled that the company “took adverse action against the employee” because he exercised his workplace rights. Consequently, it ordered the employer to pay $160,000 for compensation and damages.
The VCCI said the case “highlights the importance of enabling employees to exercise workplace rights and entitlements under the Fair Work Act 2009 (Cth) and other relevant legislation.”
“It is important for businesses to ensure employees are treated in a fair and reasonable manner, and that decisions regarding health capacity and access to employee entitlements are based on evidence,” the VCCI added.
