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 uncooperative, 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.

The Federal Court found that:

  • the employer’s conduct in investigating and suspending the employee and issuing a final written warning constituted “adverse action”;
  • the employee exercised a “workplace right” by tagging the forklifts and then resisting temporary measures proposed to return the forklifts to service, as he acted in accordance with his duties under the Occupational Health & Safety Act 2004 (Vic) (whether as a health and safety representative or an ordinary employee); and
  • the employer failed to establish that the employee’s exercise of workplace rights was not a substantial factor in its decision to take the adverse action.

Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Visy Pty Ltd (No 3) [2013] FCA 525