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Threatened with the sack

Threatened with the sack

The Federal Court has found that an employee was threatened with the sack for carrying out his work health and safety (WHS) duties.

The court heard that in August 2011 a reversing forklift with an inaudible beeper surprised the employee, who was working at Visy Packaging Pty Ltd (Visy).

The employee, who was also the elected OHS representative, tagged the forklift and later a second forklift.

The tagging alerted others not to use the forklifts because they were faulty or unsafe.

In response, Visy investigated the incidents, suspended the employee from work and issued the employee with a final written warning.

The employee and the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (AMWU) took Visy and two of its managers to the Federal Court, claiming they had taken adverse action against the employee under s 340 of the Fair Work Act 2009.

The court found that Visy and the managers, in investigating and suspending the employee and issuing the final written warning, had taken adverse action.

In explaining its finding, the court said the employee had been exercising a “workplace right” under the Fair Work Act when he tagged the forklifts.

And Visy and the managers had failed to establish that the employee exercising his workplace right was not “a substantial and operative factor in their decisions” to investigate and suspend him, and issue him with a final written warning.

Penalties will be determined at a later date.

For more details, visit the case.

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