In a significant decision, the Federal Court has found that Visy Packaging took adverse action against an elected safety representative by investigating his attempts to exercise a workplace right by sidelining two defective forklifts, leading to his suspension and a final written warning, just four months after it launched a "Tuff on Safety" campaign.
Justice Bernard Murphy ruled that Visy Packaging Pty Ltd and its managers breached the Fair Work Act's s342(1) when they exposed the representative to a disciplinary process.
He found that the representative exercised his s340 workplace rights when he:
- acted in accordance with his rights or duties under Victoria's Occupational Health and Safety Act 2004, regardless of whether he discharged these as a health and safety representative or as an "ordinary employee";
- tagged the defective forklifts in light of his safety concerns; and
- resisted a proposal to return the forklifts to service without repairs during meetings with his managers.
While little production time was lost, the operations manager decided to engage an external consultant to conduct an investigation and suspend the representative on full pay after he sidelined the forklifts.
The AMWU, on behalf of the representative, failed to have the investigation and suspension cancelled in an injunction bid before Federal Court Justice Julie Anne Dodds-Streeton on August 12, 2011.
But it succeeded a month later when Justice Murphy made an interlocutory ruling, finding a strong prima facie case that Visy had contravened adverse action provisions by issuing a final warning to the representative - who had worked at the food can plant in Coburg, Victoria, for 23 years - because he had exercised a workplace right by preventing workers using two forklifts on August 5, 2011, which had defective reverse warning beepers, after he had a near miss with one (see Related Article).
He ordered Visy to put on hold the final warning and any investigation, pending a full hearing.
In the resulting hearing, Visy claimed that the plant's managers believed the representative failed to co-operate during a series of meetings by considering other temporary control measures, including asking forklift drivers to use the steering wheel horn as a warning device when reversing, which the representative stridently opposed.
It also alleged the representative failed to identify himself as a safety representative to a WorkSafe investigator, but rather a "concerned employee", and then lied by claiming there was a history of forklift "near misses" at the plant.
But Justice Murphy found that the representative had acted reasonably by tagging the forklifts and by defending his actions.
He rejected Visy's claim that the resulting investigation was an impartial fact-finding exercise to consider allegations of misconduct, conducted in good faith, and therefore didn't constitute adverse action.
"I am satisfied that the investigation in the present case exposed [the representative] to a reduction in the security of his future employment which represented a deterioration in the advantages of his employment. It constitutes adverse action," he said, following Jones v Queensland Tertiary Admissions Centre Ltd (see Related Article).
He found the suspension involved adverse action because it "resulted in a deterioration in the advantages otherwise enjoyed by [the representative] in his employment".
Likewise, Justice Murphy said the final written warning, which told the representative that his conduct risked summary dismissal, also reduced the security of his future employment.
Justice Murphy found the representative was carrying out his responsibilities under s25 and s58 of the Victorian OHS Act when he tagged the forklifts and then objected to the temporary measures proposed by the managers, which he said are important rights which "should not lightly be treated as constituting uncooperative or obstructive conduct".
"The OHS Act plainly contemplates that a health and safety representative may have a different view from the employer as to the appropriate resolution of a particular health and safety issue. The right to advocate such a different view is an important workplace right and the dialogue it promotes serves an important occupational health and safety function," he said.
Visy managers' conduct inconsistent with zero-tolerance clampdown
Justice Murphy was especially critical of Visy and its managers in light of the company's zero-tolerance safety campaign.
The Tuff on Safety campaign, launched in April 2011, urged workers to "Challenge the unsafe behaviour of the guys working next to you", telling them "You have the ability to stop the next injury from occurring".
Justice Murphy also noted the Coburg factory was one of Visy's more poorly-performing sites.
Justice Murphy found Visy failed to discharge the s361 onus of establishing that the representative's exercise of workplace rights wasn't a "substantial and operative factor" in its decision.
He rejected the company's claim that it suspended the representative over his failure to follow appropriate forklift tagging processes, lack of cooperation with his managers and the WorkSafe inspector, failure to report near misses, and a breakdown in trust and confidence.
Rather, Justice Murphy found the operation manager influenced Visy's decision to suspend the representative because he believed he was intent on deliberately disrupting production.
He was also critical of Visy's attempts to distance itself from liability by engaging an external investigator, who it believed would quarantine the company from any potential bias claim.
He said the investigation was tainted, not the least because Visy sought to approve the investigator's questions before he interviewed the representative.
Judge labels operations manager accessory
Criticising the Coburg plant's operations manager and production manager, Justice Murphy said evidence given by the pair was inconsistent and implausible.
In particular, he slammed the inconsistent evidence of the operations manager over whether he believed the representative had tagged the forklifts in response to a genuine safety concern or simply to disrupt production.
"While I have not reached this view lightly and it has involved some anxious reflection, his prevarication and the contortion that his evidence involved, has led me to conclude that he was not frank with the Court," he said.
He found that as "Visy's guiding mind for these acts", the operations manager was on the balance of probabilities an accessory to the adverse action taken by Visy.
But he rejected the union's claim that the production manager was also an accessory and ordered the application against him be dropped.
Justice Murphy directed the parties to make submissions on penalty.
Slater & Gordon lawyer Brad Annson told Workplace Express the case is the first of its kind to find that a safety representative's right to identify safety concerns under OHS legislation with an employer is protected as a workplace right both in the person's safety role and as a concerned employee.
Importantly for employers, Annson said, the case shows that companies cannot avoid liability under general protections laws by engaging an external consultant to distance themselves from liability as the "ultimate decision maker".