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Adverse action — employer’s response to OHS/WHS complaints

Release Date

31 August 2012

A mining company has been ordered by the Federal Court to offer to renew the employment contract of a rail worker whose position it altered to his prejudice because of his readiness to complain about safety standards.

[Full text of this case: CFMEU v Pilbara Iron Company (Services) Pty Ltd (No 3) [2012] FCA 697 (29 June 2012)]

In November 2010, Mr L commenced work as a trainee locomotive examiner at the 7 Mile Yard in Dampier, Western Australia, pursuant to a 12-month fixed term contract with Pilbara Iron Company (Services) Pty Ltd. His duties included shunting train carriages, conducting safety checks and performing minor maintenance on ore carriages.

All employees engaged as examiners by Pilbara Iron are initially employed under a 12-month, fixed-term contract so that the company has an opportunity to assess the employee’s suitability for permanent employment. Subject to satisfactory assessment, employees are offered permanent employment at the end of the term.

Mr L was one of a small minority of trainee examiners in the relevant period to whom an offer of permanent employment was not made. As such, his employment came to an end at the expiration of the fixed term.

Subsequently, he claimed Pilbara Iron took unlawful adverse action in three different respects:
‘(a) in refusing to employ [him] after the expiration of the fixed term contract and therefore discriminating between him and other employees ...;

(b) in its appraisal of [his] performance in July 2011 in that it altered his position to his prejudice; and

(c) in refusing to accept his nomination for membership of the [company’s] safety and health committee in that it altered his position to his prejudice.’

‘Particular interest in safety’

In the Federal Court, Justice Anna Katzmann said that the ‘real question’ for determination was whether Pilbara Iron’s actions were influenced by factors the company was not entitled to take into account. In other words, whether it took adverse action against Mr L for ‘prohibited reasons’, thereby contravening his general protections under the Fair Work Act 2009.

Before determining this question, Justice Katzmann explained that Mr L had a ‘particular interest’ in workplace safety, having served as an elected OHS representative for some years with two previous employers.

Relevantly, she said that Mr L had, during the course of his employment with Pilbara Iron, ‘confronted his supervisors on several occasions about matters of workplace safety and other work-related issues that concerned him’ and that it was not long before his conduct in this regard ‘raised the ire’ of a number of his superiors.
Supervisors ‘troubled’ by complaints

Justice Katzmann was not satisfied that the three actions taken against Mr L were divorced from his readiness to complain about or inquire into matters relating to his employment, which is a prohibited reason.

Although she did not doubt that Mr L was ‘imprudent’ and ‘at times intemperate and discourteous’ in his dealings with supervisors, Justice Katzmann reached the view that the company was not merely ‘troubled’ by the manner of Mr L’s communication, but also by ‘the fact and frequency of his complaints’.

Relevantly, she said she gained the ‘distinct impression’ that Mr L’s supervisor, in particular, was ‘offended by the fact that the complaints were made, or at least repeatedly made, and by the fact that [Mr L] was not easily placated’.

‘In my assessment, [Mr L’s immediate supervisor] thought that [Mr L] was too big for his boots, that is to say, that he considered he was taking up issues he would not have expected a trainee to raise, that he resented [his] continuing intervention in matters he considered were no concern of his and that he found the task of dealing with his complaints burdensome,’ Justice Katzmann said.

In respect of the assessment of Mr L’s performance during the mid-year performance, Justice Katzmann found that the company had originally drafted an evaluation awarding Mr L a score meaning that he was eligible for continuing employment, but then revised the score to ‘produce the outcome ... needed to facilitate his termination’. She added that the company had made the decision as early as June 2011 not to renew Mr L’s contract for the prohibited reason identified.

In respect of the company’s decision to refuse to accept Mr L’s nomination for election to the safety and health committee, Justice Katzmann was satisfied that Mr L’s ‘energetic advancement’ of his union’s interests also probably played a part in the employer’s decision to refuse to accept his nomination for election to the safety and health committee.

In all the circumstances, Justice Katzmann determined that Pilbara Iron had contravened s340 and s346 of the Fair Work Act in that it took adverse action against Mr L for prohibited reasons; namely, because he had exercised his workplace rights and engaged in industrial activity.

She ordered the company to offer Mr L permanent employment on the same terms and conditions that apply to other examiners who have completed their first year of employment and have accepted offers of permanent employment.

CFMEU v Pilbara Iron Company (Services) Pty Ltd (No 3) [2012] FCA 697 (29 June 2012)

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