The Federal Court has granted an injunction restraining an employer from issuing a “final warning” to an employee, pending a full hearing.

The employee, who was a health and safety representative, “locked out” two forklifts which had safety issues.  The employer alleged that the employee caused a cessation of work, failed to consider alternative options and behaved unreasonably in meetings regarding the incident.  The Federal Court had earlier refused to grant an injunction restraining the employer from suspending the employee (on full pay) while it conducted an investigation over the incident.

The Court held that if the employee had acted to maintain safety pursuant to OH&S legislation, then the employee would have been exercising a workplace right.  It was uncontested that the warning altered the employee’s position to his prejudice.  The Court held that there was a “strong prima facie case” that the warning was given because the employee exercised his workplace right.  The Court accepted that the employee’s employment would be less secure if the injunction was refused, and that the inconvenience for the employer was “not as apparent”. 

AMWU v Visy Packaging Pty Ltd (No 2) [2011] FCA 953