FWC rules on dismissal after worker refused task due to injury
The Fair Work Commission (FWC) recently dealt with an unfair dismissal case where a worker argued he was wrongfully terminated after refusing to operate machinery due to a workplace injury. The worker claimed his employer failed to consider his medical condition and dismissed him without proper warning or process.
The case raised important questions about how employers should handle situations where workers cite health concerns in refusing certain duties, and what constitutes reasonable management directions in such circumstances.
It also examined the role of procedural fairness in termination decisions.
The case involved a family-owned grocery and food produce business in Auburn, NSW, operating since 1981. The business supplied produce to private and government institutions, including restaurants, supermarket chains, and NSW Government Departments.
Starting as a casual packer in 2018, the worker became a permanent full-time nut roaster in 2019. His duties included roasting nuts and selling products at the Flemington Markets.
The operations manager emphasised the critical nature of the role in his evidence: "The task of roasting nuts, which involves a machine like a cement mixer, requires the utmost concentration and attention so injuries or incidents do not occur."
In December 2023, the worker reported an injury to his supervisor, saying: "I have got a problem with my hand. Something happened when I lift the bag. I'm just going to go to the doctor."
On 10 May 2024, the operations manager asked the worker to operate the tumbler machine, which involved lifting 25-kilogram bags. When the worker tried explaining his injury, the manager responded by saying: "If you don't want to do this, I don't need you anymore. You can go home."
The worker later received a termination letter citing three reasons: refusal to comply with management instructions about operating the tumbler machine, communication issues, and multiple warnings about mobile phone use.
Medical evidence showed the worker first sought treatment in December 2023. A physiotherapist report confirmed he had "tennis elbow, which has developed due to overuse from his work duties" and experienced significant pain from basic tasks.
The employer claimed there were previous warnings about mobile phone use and communication issues. However, while a July 2021 written warning existed about mobile phone use, the worker said he never received it.
The Commission found the employer's reliance on verbal warnings problematic, particularly given English was not the worker's first language.
The Commission examined whether the employer knew about the injury before the dismissal. While the operations manager claimed unawareness until after the termination, evidence showed the worker had informed his supervisor, who said he would relay this to management.
The decision stated: "[the worker] had a reasonable excuse for not operating the machine, being his injured elbow, and that he informed [the manager] of this reason."
Regarding procedural fairness, the Commission noted: "By not putting [the worker] on notice that he was at risk of dismissal, [the manager] deprived [the worker] of the opportunity of persuading [the manager] to refrain from proceeding with the dismissal."
The Commission found three key factors made the dismissal unfair: "There was no valid reason related to [the worker's] conduct... there was no procedural fairness or consideration of alternatives to dismissal... and... the harsh consequences of the dismissal due to the financial impact of the dismissal on [the worker] and the adverse impact on his employment prospects given that he was dismissed at a time that he was injured."
At the time of the hearing, the worker remained unable to resume all pre-injury duties and was receiving workers' compensation payments lower than his previous weekly wage.
The Commission ordered compensation, with the amount to be determined after receiving further evidence about his current circumstances and workers' compensation payments.
