Mr Mirow developed an adjustment disorder with depressed and anxious mood as a result of bullying, isolation and discrimination at work after he reported issues with his pay and unsafe working conditions to his supervisor.

His employer argued his employment was not the main contributing factor to his psychological injury, but rather that it was his separation and custody dispute.

There was a variety of medical evidence in this case. One report contained a detailed history of the events Mr Mirow suffered at work and concluded Mr Mirow’s employment was the main contributing factor to his psychological injury. This was preferred and accepted by the Commission.

Mr Mirow’s employer was ordered to pay medical expenses and backpay 9 months’ worth of weekly benefits.

See Mirow v Suez Recycling and Recovery [2020] NSWWCC 279.

Lessons

1. Policies relating to performance management and disciplinary action should set out a clear process that the organisation will adopt in specified circumstances. These processes should be followed in the same manner with all employees.
2. Disciplinary action must be proportionate to the misconduct. A minor breach of policy may not necessarily warrant a formal warning.
3. An employer can stand down an employee under the Fair Work Act during a period in which the employee cannot usefully be employed because of industrial action, a breakdown of machinery or equipment or a stoppage of work. Where an enterprise agreement of employment contract applies and covers the stand down of the employee, the terms and requirements of that enterprise agreement or employment contract apply instead of the Fair Work Act. In this case, Mr Mirow was stood down on numerous occasions and for lengthy periods for alleged misconduct such as leaving work without permission and stopping his truck to urinate by the side of the road. These were not valid reasons for stand down. The evidence in this case indicated the stand downs occurred shortly after Mr Mirow raised issues with his pay. Mr Mirow could have raised an adverse action claim against his employer.
4. A stand down is different to a suspension. An employee may be suspended on full pay pending an investigation but there will need to be a strong basis for doing so, such as to protect the health and safety of the employee or others. This would not have worked in this case, as there was no evidence to suggest Mr Mirow’s alleged misconduct put the health and safety of him or others at risk.