By Mike Toten Freelance Writer

A recent case that concluded that an employee was unfairly dismissed has examined the issue of whether an employee’s concerns about workplace safety take precedence over an employer’s “reasonable management directive”. In this case, the employer’s failure to provide procedural fairness led to the decision of unfair dismissal.

 

Facts of case

The employee was a nut roaster for a food supplier, a job that involved operating machinery. The latter included a tumbler machine that included lifting weights of 25kg. 

Five months earlier, the employee had reported to his manager that he had “a problem with my hand” and went to a doctor. A physiotherapist eventually diagnosed a tennis elbow type of injury, and said that its cause was work-related. When he was asked to operate the tumbler machine one day, he mentioned the problem with his hand/elbow, but the manager said “if you don't want to do this, I don't need you anymore. You can go home." The manager later claimed he was unaware of any injury. The employer did not receive a workers compensation claim until later.

The employer followed up with a termination of employment letter, citing refusal to comply with management directives, communication problems (mainly alleged rudeness and abruptness towards co-workers) and excessive mobile phone use during work hours. The employer claimed that he was previously warned about the latter two matters, but the only written warning was almost three years earlier, and the employee claimed that he did not receive it. The employer then claimed there had been several verbal warnings.

The Fair Work Commission (FWC) found that the employee had told his supervisor about his injury, and the supervisor undertook to notify management of it, but the latter may not have occurred. 

 

Decision

The FWC found that the employee had a reasonable excuse (his injury) for not performing the work, and had previously notified his supervisor of the injury. There was insufficient evidence that he had received previous warnings. The employer denied him procedural fairness by:

  • Not notifying the employee that he was at risk of dismissal
  • Depriving him of the opportunity to persuade management that he should not be dismissed
  • Dismissing him while he was injured, which had a strong negative impact on his prospects of finding other employment

The employee was still injured and receiving workers compensation payments when this judgment was made. Financial compensation will be awarded, but the amount is yet to be determined.

 

What this means for employers

An employee’s safety concerns about working with an injury can be a legitimate reason to refuse a management directive to perform work, but it will depend on the individual circumstances of each case. 

Had this employer followed procedural fairness, including giving the employee an opportunity to explain his reason for refusing to work, it may have avoided a claim of unfair dismissal.

Finally, if it is deemed necessary to issue warnings to employees, it is not recommended to rely on verbal ones only.

 

Read the judgment

Mr Naser Taghizanjani v Harkola Pty Ltd - [2024] FWC 3153 | Fair Work Commission