Court confirms that employees can be protected if they refuse to undertake dangerous tasks
21 October 2021
The recent decision in the Federal Circuit Court decision in McNamara v Era Pacific Pty Ltd  FCCA 1689 (23 July 2021) confirmed that employees are protected from unfair dismissal stemming from a refusal to undertake dangerous tasks.
What was the background to the case?
In this case, an employee was dismissed after he refused to do a task that he believed would expose him to a serious health and safety risk. The employee was a full-time truck driver who was instructed to pick up and deliver a 10-metre long beam. The beam was longer than the size of his truck and posed potential hazards while unloading. Because of his concerns, he contacted his supervisor and they completed the task together.
A few months later the employee was asked to perform the same task under the direction of a different supervisor. Once again, the employee expressed his concerns and asked for assistance with the delivery. However, his new supervisor refused to assist him and they had a heated conversation. The employee asserted that he would not complete the task because of the hazards it posed and his employment was terminated.
What did the court decide?
The Court confirmed that under section 84 of the Work Health and Safety Act 2011 (Qld), the employee had a right to refuse work that carried a health or safety risk. In the circumstances, the Court held the employer’s termination action was unlawful, imposed penalties on the employer for breaches of the Fair Work Act 2009 (Cth) and awarded compensation to the employee.
What are the consequences for other organisations?
The purpose of work health and safety laws (WHS laws) is to protect the health, safety and welfare of employees, volunteers and other people at a workplace. This case demonstrates that compliance with WHS laws is important. If your not-for-profit organisation doesn’t comply with these laws, it risks court action and substantial fines.
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