When an employee applied for a job he informed the employer that he had a permanent injury.  The employee was then employed as a trainee, partly because the employer wanted to trial the employee in respect of his capacity to perform the work and partly because the employer mistakenly believed the employee had not completed some required training.  During this period the employee was paid below the applicable award rate.  The employee later resigned and the Fair Work Ombudsman (FWO) brought an adverse action claim.

The Federal Magistrates Court held that the employer and its sole director had taken adverse action against the employee by discriminating against him because of his disability.  In determining the appropriate penalty, the Court accepted  the employer did not intend to deliberately exploit the employee’s disability.  It also found that the employer had underpaid the employee for only a short period and had agreed to pay him above the award rate before he resigned.  Further, the employer had genuinely attempted to determine the appropriate rate of pay, but had been provided “profoundly unclear” information from the Fair Work Infoline.

The FWO sought (and the employer and its director agreed to) a penalty in the range of 30% of the maximum.  However, the Court ordered that the employer and its director pay less than 5% of the maximum. 

Fair Work Ombudsman v Drivecam Pty Ltd & Ors [2011] FMCA 600