Federal Court decision supports HSR’s role

in workplace dispute   

The recent Federal Court decision in AMWU v Visy Packaging Pty Ltd (No 3) [2013] FCA 525 demonstrates the careful balancing act an employer faces when disciplining an employee for misconduct where the employee has raised safety concerns.

Jonathan Zwart was employed by Visy Packaging Pty Ltd (Visy) in the role of a fitter and machine setter. Mr Zwart was a member of the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (AMWU). Relevantly, he was also an elected health and safety representative for Visy under the Occupational Health and Safety Act 2004 (Vic).  

Forklifts used at Visy's workplace were equipped with 'warning beepers' as a safety measure to manage the risk of a forklift causing injury on the noisy factory floor.  

While performing his duties, Mr Zwart was surprised by a forklift because he did not hear its warning beeper. He then 'tagged' the forklift to prevent it being used. Visy had implemented a 'tagging process' as a temporary measure to stop unsafe equipment presenting a risk of injury to workers.

Visy was concerned that Mr Zwart had been uncooperative and untruthful during the meetings to resolve the issue.  Mr Zwartt had tagged a second forklift. In response to this concern, Visy's Operations Manager directed that an investigation be commenced into Mr Zwart's conduct and suspended him on pay until this investigation was completed.

The investigation identified deficiencies in relation to how Mr Zwart acted, which caused Visy to issue a final written warning notifying him that he had engaged in serious misconduct and further instances of misconduct could result in the termination of his employment.

The Issues

The key issues before the court were:

•             whether Visy's actions in investigating and disciplining Mr Zwart constituted 'adverse action';  
•            whether Mr Zwart was exercising a 'workplace right' at the relevant time; and  
•        whether adverse action  was taken because Mr Zwart exercised a workplace right.     

The court decision

The Federal Court decided Mr Zwart was exercising relevant workplace rights by inspecting and tagging the forklifts and attending meetings to resolve the issue because these actions related to his powers under the OHS Act.

The Federal Court determined that Visy and the Operations Manager failed to discharge the 'reverse onus' and prove the adverse action was not taken because of Mr Zwart's exercise of a workplace right.

Visy and the Operations Manager claimed the action of investigating and disciplining Mr Zwart were taken because of Mr Zwart's unsatisfactory conduct in the meetings and not because he tagged the forklifts. The evidence of the managers who made the decision to investigate and discipline Mr Zwart was that they acted only because of Mr Zwart's non-cooperation. Importantly, the managers strongly denied that they acted because Mr Zwart had tagged the forklifts. There was no direct evidence to the contrary.

The Federal Court found the following conduct was 'adverse action' under the Fair Work Act 2009 (Cth):

·          Conducting an investigation into Mr Zwart's conduct - because the investigation could result in dismissal and therefore made his employment less secure. 

·          Suspending Mr Zwart from employment - because while suspended, he could not enjoy the benefit of interacting with workmates, and therefore suffered a "deterioration in the advantages otherwise enjoyed". 

·         Issuing Mr Zwart with a final warning - because this reduced the security of future employment. 

With a successful judgement, Mr Zwart said the case had proven the rights of workplace health and safety representatives to disagree with employers without suffering discrimination.   

As Murphy J stated, “actions taken by a health and safety representative in asserting a particular position on a health and safety issue should not be lightly treated as constituting uncooperative or obstructive behaviour.”  

The case also highlights the importance of properly understanding the work health and safety powers of employees and the potential risks of disciplining employees who exercise these powers.

 

Read more:-   http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/FCA/2013/525.html?stem=0&synonyms=0&query=FCA%20525