вторник, 24 февраля 2015 г.

Австралия (охрана труда). Сотрудник был уволен за написание жалоб, содержащих его подозрения о том, что в организации нарушаются правила охраны труда; хотя он и был представителем внутреннего органа организации, отвечающего за охрану труда, это не дало повод независимой Комиссии по трудовым спорам восстановить работника, потому, что его жалобы о нарушении охраны труда были признаны необоснованными и обременительными для нанимателя.

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Case Study: Disciplining a worker for making 

vexatious safety claims

Tuesday, 24th February, 2015, by Alanna Furlan
In today's Health & Safety Bulletin:
  • Case Study: Disciplining a worker for making vexatious safety claims
Dear Reader,
Under health and safety legislation and the Fair Work Act 2009, workers have a right to raise their concerns over unsafe practices at work.
This is a protected activity under general protections provisions, meaning that if you discipline or dismiss a worker for raising a safety concern, you could face penalties of up to $10,200 if you’re an individual or $51,000 if you’re a body corporate.
However, as Michael Selinger explains in the case study below, there are sometimes exceptions to this rule.
If a worker raises a safety concern in an inappropriate manner, or makes claims they know to be false or vexatious, you may be justified in taking disciplinary action against them.
See you on Thursday,

Alanna Furlan
Health & Safety Bulletin
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Case Study: Disciplining a worker for making 

vexatious safety claims

By Michael Selinger
Editor-in-Chief, Health & Safety Handbook

Businesses are often uncertain as to whether they can discipline a worker for the manner in which they raise health and safety concerns.

Both safety legislation and industrial laws provide legal protection to a person who raises work health and safety issues, particularly where the person is a member of a safety committee or holds an elected position of a health and safety representative.

However, a recent case in the Fair Work Commission (FWC) demonstrates that there is a limit to that protection. That limit is misconduct.

The case
In the case of Alphonse Kaskol v TNT Australia Pty Ltd (2015), the employer had reached the end of its patience with an employee who continued to make what the Commission called “false, spurious and vexatious claims against his ... colleagues ...[which were] totally without substance”.
Deputy President Ingrid Asbury found the employee was acting outside his role as a health and safety committee member and was “not immune” because of his statutory role.

TNT sacked Mr Kaskol in October 2013 after he accused managers of covering up his safety concerns.
The claims, which were found to be vexatious, initially resulted in the employee receiving a warning.

The conduct of the employee became worse when he emailed TNT directors and managers and insulted them about their conduct. He accused some managers of not being qualified, being lazy and ignoring his safety complaints.

The matter reached breaking point when he accused other employees at the business of racism and nepotism. After a final warning letter was issued to the employee and a requirement to explain his position was ignored, he was sacked.

The verdict
Ultimately, the court rejected the employee’s unfair dismissal claim as it was satisfied that he had acted vexatiously and that his employer had acted extremely reasonably in the circumstances.
Importantly, despite the employee being a member of the safety committee and having raised safety concerns, this was found by the FWC not to be related to the decision to terminate his employment. As such, the employee could not satisfy the Commission that he had been discriminated against or treated unfairly because of his position.

What you can learn from this
The case is a useful reminder that the role of a safety committee member or safety representative is an important one that comes with a responsibility to discharge the obligations in a genuine, honest and impartial manner.
If your business has a safety committee or appoints safety representatives, it is important to remind them of these responsibilities.

Warm regards,
Michael Selinger signature
Michael Selinger 
Health & Safety Handbook

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