Bridget Nunn

WHS Discrimination Provisions – An Alternative Unfair Dismissal Jurisdiction

Bridget Nunn

31 July 2015

Employment Disputes Work Health and Safety

The Industrial Relations Court of South Australia recently granted a worker leave to proceed with a claim for compensation under discriminatory conduct provisions in the Work Health and Safety Act 2012 (SA) (WHS Act) after he was dismissed from his employment for safety breaches.  The case highlights a potentially new avenue through which employees dismissed for safety breaches have up to one year to seek uncapped compensation or reinstatement.

The worker was employed by a transport contractor to perform deliveries for a supermarket chain.  Following allegations that he had breached safety procedures at the supermarket’s loading dock, the worker’s employment was terminated by the transport contractor.

The worker denied having breached any safety procedures.  He claimed to have appealed to his employer and a representative of a different contractor engaged by the supermarket chain (who had management and control of the loading dock) to further investigate the matter by reviewing CCTV footage. The worker claimed his request was refused and his employment was terminated without further investigation.

The worker brought proceedings against the supermarket chain, his employer and the managing contractor under section 112 of the WHS Act, alleging that the three entities engaged in unlawfully discriminatory conduct against him because he raised an issue or concern about work health and safety and because he was involved in resolving a work health and safety issue.

The three entities asked the court dismiss the claim summarily on a number of grounds.  They were unsuccessful.

The merits of the worker’s claim remain to be tested.  However, even at this early stage, this case highlights an alternative approach that workers who have been dismissed in the context of disputes concerning safety issues may seek compensation or reinstatement to their employment.

Unlike an unfair dismissal claim, there is no limit on the amount of compensation that may be awarded in this type of claim.  Employers facing claims of this kind also bear the burden of proving that a ‘prohibited reason’ (as defined in 106 of the WHS Act) was not the substantial reason for engaging in the discriminatory conduct.  In these senses, the discriminatory conduct provisions of the WHS Act are similar in substance and application to the adverse action provisions under the Fair Work Act 2009 (Cth) (FW Act).  However, the time limit for bringing a claim under the WHS Act is one year compared with only 21 days under the FW Act.

While this claim was made under the South Australian WHS Act, the same claim could be brought under the Acts of any of the States in which model safety laws are in place; and similar provisions exist in the older legislation in place in Victoria and Western Australia.

Employers looking to dismiss workers for safety breaches should be mindful of this potential alternative form of claim against them.

In order to minimise the risk of a claim of this type being successful, employers should ensure that alleged safety breaches are thoroughly investigated and that the employees involved in the investigation are afforded procedural fairness throughout the investigation and any ensuing disciplinary process.