An employee who was sacked for failing to complete a workplace assessment following an accident has succeeded in his adverse action claim and was awarded over $100,000. The employee was a train driver who had suffered post-traumatic stress disorder and depression following the train accident in which he was involved. The Federal Circuit Court found that the sacking was "clearly deliberate" and for a prohibited reason, accepting that the driver was in a vulnerable state, being sick and anxious following the accident, hence why he was unable to complete the workplace assessment.
The employee had initially sought reinstatement to the position but later claimed and was successful in obtaining compensation and a $5,000 pecuniary penalty against the company. The Federal Circuit Court awarded the employee six months' lost wages, plus a significant award of $25,000 for "distress, hurt and humiliation" arising from his dismissal. In deciding the penalty, the judge commented that "there is certainly a need to send a clear message to this employer and others, that employees should only have their employment terminated for proper and lawful reasons. If the employer does not have a proper reason, the employer should expect an appropriate penalty for this unlawful conduct."
Key take away: In Australia, workers have a number of protections, particularly under the general protections provisions which prohibit employers from taking adverse action for a prohibited reason. Consequently it is risky in Australia to terminate an employee's employment without a genuine reason, particularly given the significant damages orders that can be made against employers who fail to terminate for a genuine reason.
Thanks to Lisa Franzini (Associate) and Louise O'Hara (Paralegal) for their assistance in the preparation of this Update.
The content of this article is intended to provide a general guide
to the subject matter. Specialist advice should be sought about your
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
Long experience representing many of Australia's leading employers has taught us that in employment litigation the identity of an employee's representative is a major factor in how employee litigation runs.
Treasurer Scott Morrison recently announced changes to a number of 2016 Budget superannuation contribution measures.
Some comments from our readers… “The articles are extremely timely and highly applicable” “I often find critical information not available elsewhere” “As in-house counsel, Mondaq’s service is of great value”
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).