Bill Fitzgerald

AMMA principal employee relations consultant Bill Fitzgerald reviews a recent decision handed down by the Fair Work Commission (FWC) after an employee claimed to have been dismissed in relation to a worker’s compensation claim.

In Tasmania’s first consent arbitration relating to an adverse action claim, a former supervisor for motor dealership Performance Automobiles sought remedy after his employment contract was terminated.

The employee claimed his dismissal was not the result of being found unable to carry out an alternative role proposed after a company restructure, but instead an outcome of the company being ‘fed up’ with his worker’s compensation claim.

The supervisor was receiving workers compensation and working on restricted duties after he was injured at work in July 2012.

In February 2014, the employer met with the supervisor to discuss future operations and to get an update on his workers compensation progress. Further, the organisation questioned his non-disclosure of an external business he was allegedly operating while on workers compensation benefits and external invoices he issued to the dealership.

The Full Bench found that the employer did not commit adverse action by retrenching the supervisor receiving workers’ compensation, despite it raising the issue shortly before informing him about his possible redundancy.

The Full Bench – President Justice Iain Ross, Deputy President Nicole Wells and Commissioner Tim Lee – held it was clear a worker’s compensation claim was a workplace right and termination was adverse action.

However, the bench held that the employer did not terminate the supervisor for a prohibited reason.

Instead, the bench accepted the company’s evidence that a restructure was necessary following a sales downturn and an amendment to the Tasmanian Government’s car purchasing policy.

It also accepted the dealership’s evidence the supervisor’s role was earmarked for redundancy in late 2011, six months before he sustained his injury and subsequently filed for worker’s compensation.

“We are satisfied on the evidence that the employer has established that the position of pre-delivery inspection supervisor was redundant because the role was no longer required,” the commission said.

Further, the bench found the organisation’s offer of redeployment was genuine and rejected the supervisor’s claim the employer was “contemptuous” towards him and “fed up”, both of which were based largely on a difficult meeting which took place prior to his dismissal.

“We note that this related to an accusation from the employer that the applicant was operating a business while on workers compensation and to an accusation that, in effect, the applicant was stealing from the respondent by charging the respondent GST in circumstances where he was not remitting any GST to the ATO,” the commission said.

“Any aggression displayed by the employer at this meeting did not relate to the applicant’s workers compensation claim.

“It is common ground that [after the applicant had been injured in a motor vehicle accident], the respondent was sympathetic and flexible to the applicant’s needs.”

The bench held the employer had shown the supervisor’s workers compensation claim was not the reason for the termination, and dismissed the application.

Click here the read the decision in full.

Implications for Employers

Adverse action claims can be made under the Fair Work Act where it can be proved that an employer terminated an employment contract as a consequence of the employee exercising a workplace right, in this case making a worker’s compensation claim.

It is critical that a specific manager is designated the primary decision maker’s role as the involvement of too many parties increases the risk of contradictions that would make the decision to terminate more difficult to defend, particularly on the basis of the redundancy.

The termination should follow a structured approach, and all conversations and meetings should be recorded to ensure the decision maker can properly consider all the circumstances without giving weight to extraneous matters. This will minimise the risk of procedural inconsistencies.

AMMA’s workplace relations experts can provide tailored advice, information and guidance about your organisation’s workplace rights and responsibilities relating to dismissal. Contact your local AMMA office for more information.