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Case Summary

Can you terminate an employee for refusing to do their job?

McNamara v Era Pacific Pty Ltd [2021] FCCA 1689 (23 July 2021)

In most cases an employer can terminate an employee for refusing to do their job, but not if they have legitimate reasons for refusal. Any adverse action taken because of the exercise of a workplace right (such as complaint or inquiry related to their employment) will result in a successful general protections claim.

Nina Hoang
Published:

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In the recent case of McNamara v Era Pacific Pty Ltd [2021] FCCA 1689 (23 July 2021) a crane driver refused to deliver a 10-metre steel beam because it was unsafe.

The worker had limited experience completing the tasks alone, and explained that the client’s sloping driveway also meant the task was unsafe because the crane could impact power lines or the beam could fall. Instead of investigating the complaint (as he was required to do), the Director threatened the worker – failure to do the task would result in instant dismissal.

A general protections claim was filed on the grounds that the worker had been terminated when exercising his right to refuse to perform unsafe work. There was no question that the action was taken by the Director for that very reason. Uniquely he had tried to mitigate the circumstances by offering reinstatement soon after the termination, but only if the worker accepted a warning and six-months probation.

The Court found this was not a mitigation because it was offered on different terms and conditions. The Court ordered compensation of $21,576.54 (inclusive of superannuation) and $7920.00 in penalties against both the Director and the company.

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Lessons for Employers

  • Remember there is a reverse onus of proof – it is the employer’s responsibility to prove the reasoning behind the decision-maker.
  • If an employee raises a complaint (whether employment or safety-related) you must undertake an investigation first before making any decisions.
  • Employees have the right to refuse to do unsafe work – remember employers have obligations to provide a safe workplace or will breach both safety and employment law.
  • Reinstating and introducing probation has no practical effect. Continuity of service would still exist so an employee could still file a claim within the minimum engagement period

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Managing Principal - Victoria

Principal Lawyer and Head of Workplace