Adverse action — employer said worker was subby

Author: Harrison HR | Blog

An employer’s action in dismissing a painter and making reckless representation about his work position contravened the Fair Work Act 2009. The Federal Magistrates Court ordered the employer to pay compensation and a penalty.

[Full text of this case: C v Crocker Builders Pty Ltd [2012] FMCA 677 (3 September 2012)]

A painter working for a construction company since 2007 was injured at work on 17 March 2010. His foot was caught in cabling and he tripped, lost his balance and fell, injuring his shoulder. He told the foreman. Later in the afternoon, his shoulder was quite sore. The foreman had left the site by then, so the painter told an apprentice that he was going to see his doctor.

The next day, the painter returned to work but could only work a few hours. He saw the doctor for a scan of his shoulder that afternoon and was advised to take time off work until 24 March 2010. He claimed workers compensation according to the Qld Workers’ Compensation and Rehabilitation Act 2003.

Painter dismissed for exercising workplace right

The painter’s supervisor phoned him on 19 March 2010 to ask why he was not at work and was told the doctor had given him time off. The company director also phoned and was told about the injury. The director was angry and told him he was not covered by WorkCover and his claim would be denied since he was an independent contractor. The parties met face to face on 12 April 2010, at which time the director claimed the painter’s workmanship was poor, listing various defects, and then dismissed him.

The painter took the matter to the Federal Magistrates Court claiming he had been dismissed in contravention of s345 of the Fair Work Act 2009 because he had exercised a workplace right, namely applied for workers compensation,

Painter’s employment status clarified

WorkCover Queensland, having been told by the employer that the painter was a subcontractor, rejected his application for compensation on 26 March 2010. On 13 April 2010, the day after his employment had been terminated, the painter applied for a review of WorkCover’s decision.

On 4 May 2010, Q-Comp set aside the decision because it had found the painter to be a ‘worker’ for the purposes of the Workers’ Compensation and Rehabilitation Act 2003.

The elements of control of the work, the mode of remuneration, the provision and maintenance of equipment and the obligation to work particular hours had made the painter an ‘employee’ within the ordinary meaning of the word.

Conclusion

The court noted that the painter’s manner of reporting the incident and the absence his doctor recommended had fallen short of what was regarded as reasonably acceptable. He had casually told people over the phone and not provided written notification or a medical certificate. Nevertheless, the court was satisfied that the painter exercising a workplace right had been the operative reason for his dismissal.

The dismissal had been adverse action as defined in s542(1) of the Fair Work Act. The employer had also recklessly, if not knowingly, misrepresented the painter’s position to WorkCover, which had resulted in his application initially being rejected. The employer had breached s345 of the Fair Work Act.

The court ordered the employer to pay $7000 (plus $516 interest) as compensation for lost wages to the painter, and $630 (plus $111 interest) as compensation for lost superannuation into a superannuation fund. The employer also had to pay a penalty of $5000 to the painter because of its contravention of the Fair Work Act.

C v Crocker Builders Pty Ltd [2012] FMCA 677 (3 September 2012)

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