King & Wood Mallesons

Asia-Pacific 100 position: 3

Health and safety duties are a protected workplace right

By Sarah Harrison

The Federal Court of Australia has found that an employee was exercising a workplace right when he tagged forklifts due to safety concerns, and disciplinary measures taken in response by his employer breached the adverse action provisions of the Fair Work Act.

The employee ‘tagged’ two forklifts to indicate that they were unsafe to use. He then had a disagreement with his managers during meetings about the appropriate temporary measures that should be put in place to address the safety issue. The managers considered that the employee was unco-operative, had not used appropriate dispute resolution measures and lied in a meeting with a WorkSafe inspector. The employee was suspended while an investigation was undertaken. The employer decided to issue the employee a final written warning for his alleged unsatisfactory conduct in the meetings…

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