HSR's final warning blocked by adverse action injunction

Tuesday, 20 September 2011 10:58am

The Federal Court has highlighted the critical role health and safety representatives play in ensuring workplace safety, in blocking a final warning issued to an HSR for alleged misconduct.

The HSR, a Visy Packaging Pty Ltd employee based in Victoria, was suspended on full pay after tagging out two forklifts with "barely audible" reversing beepers, and then allegedly failing to "engage in reasonable discussions" to resolve the issue, early last month.

On 12 August, the Federal Court rejected an application from the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union to issue an interlocutory injunction against Visy over the suspension.

On 18 August the employer issued a final warning to the HSR, and the union renewed its injunction bid.

Before Federal Court Justice Bernard Murphy, Visy contended the worker had not properly considered alternative approaches to the forklift problem, such as using the horn while reversing or using another vehicle.

It also argued that he "did not conduct himself reasonably in subsequent meetings in regard to those steps".

The union contended the employer had breached s340 of the Fair Work Act 2009, in taking adverse action against the HSR for exercising a "workplace right".

Justice Bernard Murphy said OHS legislation required employees to take reasonable care for their own safety and the safety of other people, and failing to do so could constitute a serious offence.

The worker in this case had the added responsibility of being an elected HSR, which was "an important" role.

Justice Murphy said the HSR tagged out the forklifts for safety reasons, and there was "a strong prima facie case" that a reason for the final written warning was that he exercised a workplace right.

Justice Murphy heard that because of the final warning there was a "real prospect" that the worker could be dismissed for misconduct before a full hearing on the issue was conducted.

"In my view, this is particularly the case when as [an HSR] he may be required by the OHS Act to take steps in his employment which place him in conflict with Visy management," he said.

In issuing an injunction, Justice Murphy said this did not stop Visy from dealing with any future misconduct.

Automotive, Food, Metals, Engineering, Printing And Kindred Industries Union v Visy Packaging Pty Ltd (No 2) [2011] FCA 953 (31 August 2011)