Published: 07 February 2019
Author: Carla Cipressi

Employer fined almost $500,000 for threatening workers 

An employer who threatened workers for reporting a health and safety problem has been slapped with a $475,000 fine.

The case which was recently heard at the County Court highlights how employers may face serious consequences if they discriminate against workers who make a WorkCover claim or raise safety concerns with their boss.

In the case, the jury heard evidence from four workers who were threatened with termination when they brought safety concerns to their supervisor about overloading forklifts with steel coils. The same supervisor again threatened workers when they suggested involving WorkSafe to resolve the problem. This was despite the fact that concerns related to the same issue that had tragically caused a fatality at the company two years prior.

The employer was found to breach the Occupational Health and Safety Act 2004 (“The OHS Act”) and was fined $475,000.

The sentencing was handed down after a jury found the employer guilty of six out of seven counts of engaging in discriminatory conduct.

What the OHS Act says

Section 76 of the OHS Act prohibits discrimination of employees including:

• dismissing an employee or threatening to dismiss 
• injuring an employee 
• altering the position of an employee to the employee's detriment or threatens to do so
• or if a prospective employer who refuses or fails to offer employment to a prospective employee, or treats a prospective employee less favourably than another prospective employee would be treated in offering terms of employment.

The Act sets out that the employer may be found guilty of breaching section 76 and can be fined or even sentenced to prison if the employer’s discriminatory conduct was for the dominant reason of any of the following:

• The worker is or has been a health and safety representative or a member of a health and safety committee; or
• The worker exercises or has exercised a power as a health and safety representative or as a member of a health and safety committee; or
• The worker assists or has assisted, or gives or has given any information to, an inspector, a health and safety representative or a member of a health and safety committee; or
• The worker raises or has raised an issue or concern about health or safety to the employer, an inspector, a health and safety representative, a member of a health and safety committee or an employee of the employer.

Penalties for threats to injured workers

The Workplace Injury Rehabilitation and Compensation Act 2013 (“the WIRC Act’) sets out similar prohibitions and penalties for employers if they discriminate against injured workers in Victoria.

Breaches of the WIRC Act

Section 578 of the WIRC Act prohibits the following discriminatory conduct:

• dismisses, or threatens to dismiss, a worker from employment; or 
• alters, or threatens to alter, the position of a worker to the worker's detriment; or
• treats a worker less favourably than another worker in relation to promotion or reemployment.

The WIRC Act deems an employer to have breached the Act if the employer’s discriminatory conduct was for any of the following substantial reasons:

• The worker has given the employer or any other employer notice of an injury; or 
• The worker has taken steps to pursue a claim for compensation against the employer or any other employer; or 
• The worker has given, or attempted to give, a claim for compensation to the employer or any other employer, the Authority or a self-insurer.

The WIRC Act has a range of remedies available if a court finds an employer guilty of an offence under section 578.

In addition to penalising the employer, the court may order that the worker is paid compensation or remunerated. The worker may also be reinstated or re-employed.

You may also be interested in reading our blog about your options if you have been unfairly terminated:
https://rctlaw.com.au/legal-blog/2018/will-lodging-a-workcover-claim-threaten-my-job

If you believe you have been discriminated against or have been terminated from employment, you should seek legal advice as soon as possible.

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