Patricks lose appeal against $180,000 fine for victimising HSR

The Victorian Supreme Court has affirmed a Victorian Magistrates’ Court decision to impose a fine of $180,000 on Patrick Stevedoring Pty Ltd (Patricks) for victimising an employee in breach of the anti-victimisation prohibitions in section 76 of the Victorian Occupational Health and Safety Act 2004 (OHS Act).  

Implications for employers

This decision demonstrates the seriousness with which the courts will approach matters involving discrimination against employees for raising occupational health and safety (OHS) concerns.  As most jurisdictions, including those who have adopted the model Work Health and Safety legislation, have anti-victimisation prohibitions in their OHS statutes, and claims of this type can also be brought under the adverse action provisions in the Fair Work Act 2009, employers should be very careful when taking action against employees in circumstances where the employee has raised health or safety concerns or been involved in health and safety issues.

Background

Mr Carroll was an experienced stevedore and elected health and safety representative (HSR) employed by Patricks at their Geelong wharf.

In 2007, Mr Carroll refused to follow the instructions of a senior manager, Mr Byers, that Mr Carroll unload a vessel using a method known as basket lifting.   Mr Carroll refused, because he and the Patrick’s OHS committee had concerns about the safety of the basket lifting procedure.  It was not in line with WorkSafe guidelines or the then current offloading procedures approved by Patricks.  Patricks’ management had been considering changing the procedures to allow for basket lifting of steel from vessels at the wharf, but had not yet conducted the consultation with employees required under the OHS Act.

Mr Byers stood Mr Carroll down for a week with no pay and threatened him with dismissal.  The failure to pay Mr Carroll was later rectified as a consequence of union intervention.

The Victorian Workcover Authority commenced proceedings against Patricks for breach of section 76 of the OHS Act, which prohibits an employer:

dismissing an employee, injuring an employee in his or her employment, altering the position of an employee to the employee’s detriment;

threatening to do any of the above; or

refusing or failing to offer employment to a prospective employee, or treating the prospective employee less favourably than another prospective employee in offering terms of employment, 

on the basis of the employee’s involvement in various OHS matters.

Decision at first instance

At first instance, Carlin M of the Victorian Magistrates’ Court found Patricks guilty of three of the five charges brought against them for breaches of section 76 of the OHS Act.  Her Worship found that the conduct of Mr Byers on behalf of Patricks constituted three distinct breaches of section 76 of the OHS Act:

causing injury to an employee for the dominant reason that the employee had raised an OHS concern;

altering the position of an employee to his detriment for the dominant reason that they raised an OHS concern; and

threatening to dismiss an employee for the dominant reason that they raised an OHS concern. 

Her Worship convicted Patricks of the offences, the first conviction of its kind in Victoria, and imposed an aggregate fine of $180,000.

Patricks appealed to the Supreme Court of Victoria.

Appeal decision

Patricks appeal was on three main grounds, namely that:

her Worship had erred in law in holding that she could not be satisfied on the balance of probabilities that the fact that Mr Carroll had raised an OHS concern was not the dominant reason for the conduct by Mr Byers;

standing down Mr Carroll could not constitute an “injury” in the sense required by section 76(1)(a) of the OHS Act; and

her Worship erred in imposing the sentence which she did by reason of her failure to give adequate reasons, a failure to take into account current sentencing practices, imposing a conviction at all and/or by imposing a sentence which was manifestly excessive. 

Justice Osborn dismissed the appeal, holding that:

Carlin M had correctly applied a subjective test in determining the dominant reason for Mr Byers standing down and threatening to dismiss Mr Carroll.  Section 77 of the OHS Act provides that where all other elements of an offence under section 76 are made out, save for that of the dominant purpose for the conduct, the accused bears the onus of proving that the dominant purpose of their conduct was not that the employee had raised an OHS concern.  Carlin M was not satisfied of this fact and Osborn J held this finding was clearly open to her on the evidence.  The accused’s contention that the real reason was because of Mr Carroll’s refusal to follow a lawful instruction was rejected, as it was not supported in evidence;

in line with the decision in Squires v Flight Stewards Association of Australia (1982) 2 IR 155, the standing down of Mr Carroll could constitute an ‘injury’, despite the fact that, after union intervention, he did not suffer any loss of pay or interruption to his regular pay cycle.  This is because it resulted in Mr Carroll singled out and treated differently to others;

although he himself would have imposed a lower penalty, Carlin M had not erred in imposing the fine which she did.  Carlin M had given sufficient reasons for her decision, was not bound to follow other penalties imposed for similar contraventions and was entitled to impose a conviction.  Nothing in Carlin M’s reasons, or the penalty imposed, indicated that the fine was manifestly excessive.