Court confirms that employees refusing to perform work that may expose them to serious health and safety risks are protected

The recent Federal Circuit Court decision of McNamara v Era Pacific Pty Ltd [2021] FCCA 1689, involved an employee who was dismissed after refusing a task that he believed would expose him to a serious health and safety risk. The employee alleged that adverse action had been taken against him because he exercised a workplace right, being the refusal to carry out the risky task. The Court found in favour of the employee, imposed penalties on the respondents for breaches of the Fair Work Act 2009 (Cth) and awarded compensation to the employee.

Introduction

In McNamara v Era Pacific Pty Ltd, Mr McNamara was employed as a full-time truck driver and scaffolder by Era Pacific Pty Ltd (ERA). The second respondent, Mr Lightfoot, was the director of ERA.

What happened?

In April 2020, Mr McNamara was instructed to collect a 10m long steel beam from the Port of Brisbane and deliver it to a client’s premises in Bulimba. The length of the steel beam extended beyond the size of the truck and posed various issues to the operation of the truck in certain situations. Upon arriving at the client’s premises, Mr McNamara decided that removal and delivery of the steel beam would be difficult and potentially unsafe. This was due to:

• the client’s driveway being very steep and narrow
• overhanging powerlines
• the street being a main thoroughfare.

Due to these concerns, Mr McNamara contacted his supervisor for assistance and together they completed the task.

Then, in June 2020, Mr McNamara was directed to perform the same task. Mr McNamara’s previous supervisor was away on long service leave and he was directed to do this task by Mr Lightfoot. Mr McNamara expressed his reluctance to do the task alone because of the safety risks. Accordingly, he asked Mr Lightfoot for similar assistance to that provided in the previous April delivery.

Mr Lightfoot refused to assist Mr McNamara with the delivery and a heated conversation between Mr Lightfoot and Mr McNamara followed in which Mr McNamara stated that he would not complete the delivery without assistance due to the health and safety risks involved. At the conclusion of the conversation, Mr Lightfoot terminated the Mr McNamara’s employment.

Decision

The Court identified that, pursuant to section 84 of the Work Health and Safety Act 2011 (Qld), Mr McNamara had the right to cease or refuse to carry out work he reasonably perceived would expose him to a serious health or safety risk emanating from an immediate or imminent exposure to a hazard. The Court agreed with Mr McNamara’s submission that, based on his prior experience, it was unsafe to carry out the task given the topographical and actual location of the site.

The Court found that, by refusing to carry out the instructions to perform the delivery, Mr McNamara exercised a workplace right as outlined in section 341(1)(c) of the Fair Work Act 2009 (Cth). The Court was satisfied that there was a sufficient nexus between the exercise of Mr McNamara’s workplace rights and his dismissal from employment and found in favour Mr McNamara.

The Court stated that the employer’s conduct was deliberate and highlighted that there was a need for deterrence to ensure the protection of workplace rights for employees. Accordingly, Mr McNamara was awarded compensation and penalties were imposed on the employer and Mr Lightfoot.

Employers must be aware of their duty to provide a workplace that minimises employee exposure to health and safety risks. Where such risks are present, employers must ensure that employees are able to raise these concerns so they can be swiftly addressed. Where an employee raises concerns about exposure to risks, an employer should respond bearing in mind their primary health and safety duties to employees and the consequences of failing to consider employee’s health and safety before taking any action against the employee.

For further information on this topic, please contact a member of our Workplace Relations and Safety team.