An employer that offered an employee a five day a week role with
less remuneration responded reasonably to the employee's
request to work less to attend to a religious observance (McMah
v Blackwood & BHP Billiton Coal Pty Ltd(2015) ICQ
The injured worker, Paul McMah, was employed as a Diesel Fitter
with BHP Billiton Coal Pty Ltd ("BHP"). He worked on a
roster consisting of two days on, two nights on, two days off, two
days on, two nights on, six days off.
In about September 2011, Mr McMah re-engaged with his religious
faith. His new religious beliefs required that he not work from
sundown on Friday to sundown on Saturday, which was the Sabbath for
that religion. In order to have enough time to return home from the
mine site and to prepare meals for the Sabbath, Mr McMah needed to
leave around midday on Friday.
Mr McMah was away from work between November 2011 and 19 January
2012 for an unrelated disciplinary matter. Upon his return to work,
Mr McMah formally applied to be placed on a five-day roster so he
could avoid working on Saturdays. He was advised that he would need
to take annual leave on Saturdays while BHP considered his request.
He was also advised that he could not take the Saturdays off as
leave without pay.
Mr McMah calculated that the amount of annual leave he would be
required to take across the year would exceed his annual leave
days. He raised his concern with the HR department, who did not get
back to him prior to him suffering stress. Mr McMah alleged that
his injury occurred over a period of time from 19 January 2012,
with symptoms becoming apparent on 7 February 2012.
On 8 March 2012, a new role was specifically created for Mr
McMah which allowed him to work from Monday to midday Friday.
However, this meant his remuneration would fall from about
$113,000.00 to $85,000.00 per year.
On 1 March 2012, Mr McMah lodged a workers' compensation
claim. He alleged that his psychiatric injury arose from
unreasonable management action, which he described as follows:
BHP was slow to act on his request to be removed from Saturday
BHP treated him unfavourable in acceding to his request for a
five-day roster, which left him financially disadvantaged.
Mr McMah also alleged that BHP indirectly discriminated against
him under section 11(1) of the Queensland Anti-Discrimination
Act1991 in requiring him to continue working on Saturdays if
he wished to remain on the seven-day roster.
BHP Queensland Workers' Compensation rejected Mr
McMan'sclaim on the basis that BHP's action was reasonable
management action taken in a reasonable way pursuant to section
32(5) of the Workers' Compensation and Rehabilitation
Act2003 ("the Act"). Mr McMah appealed the rejection
to Q-Comp (now the Regulator),who upheld the rejection of Mr
McMah's claim. Mr McMah then appealed to the Queensland
Industrial Relations Commission ("the Commission"). The
Commission dismissed the appeal on the basis that Mr McMah's
injury arose from reasonable management action undertaken in a
Deputy President O'Connor found that Mr McMah specifically
sought a five-day roster, and BHP acted on that request. Deputy
President O'Connor noted there was some delay in BHP's
response to the request, but it was not inordinate. He held that
management action did not need to be without blemish to be
considered reasonable in a psychological injury dispute.
Mr McMah then appealed to the Queensland Industrial Court.
The Queensland Industrial Court found that Mr McMah's stress
arose from reasonable management action, and BHP did not indirectly
discriminate against him. The Court held that the reasons for
decision provided by the Commissioner were adequate and did not
demonstrate an error of law.
Employers should be encouraged by this decision as it has
reinforced the right of employers to have regard to the operational
requirements when considering alternative employment arrangements
for employees with protected attributes under the Queensland
Anti-Discrimination Act1991. However, employers still need to
proceed methodically and promptly when considering such
arrangements and not respond in a "knee jerk"
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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An employee that refused a reasonable offer of settlement was ordered by the FWC to pay his ex-employer's legal costs.
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