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Compensation for adverse action (disability)

A worker with a heart condition has won an adverse action verdict against a company which argued that his departure from the company was by mutual agreement. The Federal Court rejected the argument (which was made curiously and if I may say so dangerously in a no case to answer submission on the basis that there had been no dismissal with the company electing not to give evidence thus exposing itself to the full force of the reverse onus of proof implications), instead concluding that the company gave the employee a fait accompli.

This was hardly a surprising finding given that the letter which initiated the employee’s fate read “Due to the fact that your job with us involves strenuous climbing and often high risk work, we are unable to let you continue this function for OH&S reasons and feel that it would be in our mutual interest for you to get work that is less strenuous and not likely to cause a repeat of the problem. With this in mind, and having no immediate alternative to offer you, we would reluctantly ask you to look for alternative employment.”

Thus the court found that the worker had been the subject of adverse action under sec 351 because he had a disability.

The court’s approach to the assessment of compensation was interesting. It decided that since the company could have lawfully brought the employment to an end with notice of pay in lieu under s.117 if it had waited for a proper medical assessment, the award of compensation should be limited to about that value and that the civil penalty should also be low due to the company having no record of a “longstanding and contumelious disregard of employees’ entitlements or underpayment of wages over a long period of time”.

Heriot v Sayfa Systems Pty Ltd (2014) FCCA 1622 and No 2 (2014) FCCA 1627.

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