Paying for the cost of adverse action

Case Two: Ruttley v Willis Brothers Installation (Qld) Pty Ltd [2022] FedCFamC2G 430

The Facts

A long-serving manager was terminated after he was diagnosed with a terminal illness of lymph node silicosis, on the basis purported by his employer that he had used an “excessive period of leave”.

The Claim

The employee disputed his termination, alleging that he was terminated because he exercised workplace rights and that the employer had breached s340 of the Fair Work Act 2009 (Cth).

The employee claimed that after the Managing Director of the employer’s parent company became aware of his diagnosis, he planned to remove the employee from the business, notwithstanding that there was no evidence to show the employee could not perform the inherent requirements of his role.

The Decision

The Federal Circuit Court and Family Court of Australia (FCCA) upheld the employee’s claim, finding that once the employer became aware of the employee’s diagnosis, it sought to remove the employee from the business. The Court also found that the Managing Director became increasingly aggressive towards the employee, including bullying and pressuring the employee to “get back on the tools”.

The Court held the employer took unlawful adverse action against the employee in breach of the Fair Work Act 2009 (Cth) in terminating his employment because he exercised workplace rights:

• by making a worker’s compensation claim for an injury sustained in the course of his employment. Following the lodgement of the claim, the employer removed the employee’s work vehicles, mobile phone and fuel card from him, suspended his allowance for being the Queensland Building Construction Commission’s nominee supervisor, and failed to pay his entitlements while he was on personal leave due to work stress; and

• by making several inquiries about details of his accrued leave entitlements and the employer’s failure to pay his leave entitlements.

The Orders

In another significant order, the employee was awarded compensation in the amount of $162,631 which comprised of economic losses and unpaid leave entitlements, as well as non-economic damages for distress, hurt and humiliation.

Key Takeaways for Employers

The above decision highlights the importance for employers to take steps to properly manage, monitor, respond and intervene in respect of complaints and inquiries raised by employees, and to appropriately address any risks identified.

The decision also emphasises that care should be taken in respect of the management of employees who are ill or are on sick leave. Employers should also ensure its managerial or senior employees are not making decisions or undertaking actions for prohibited reasons, or else risk being exposed to employee claims and resulting compensation, including damages other than economic loss.