Employees are well within their rights to raise occupational health and safety concerns without fear that their employment will suffer as a consequence. Under OHS laws, employers cannot dismiss, injure or alter (or threaten to) an employee in their employment to their detriment for a prohibited reason.

 

 

 

Typically, examples of injuring or altering the conditions of employment have included:

• Demotion/ refusing promotion
• Lower salary, increments or less rewarding bonuses
• Allocation of work below skill/classification level
• Fewer training opportunities
• Job transfer

Employers who engage in these practices can face legal proceedings or even criminal prosecution and penalties if the dominant reason for their action was because of the employee’s involvement in raising health and safety concerns.

In a recent case[1], the Victorian Supreme Court has provided guidance on how OHS laws are applied when employees are discriminated against for a prohibited reason.  A group of Acme Storage employees voiced fears to their operations manager that workplace goods, which required lifting, exceeded the safe work limit of the warehouse forklift. They suggested that the company purchase another forklift and seek advice from WorkSafe about the issue.

In response, the manager allegedly stated that he “had enough” of the worker who raised the concern and “he and others had better watch their jobs”. It was also submitted that the manager said he “did not care if he had to sack one, five, 10 or 20 workers, that heads were going roll and that he was going to straighten the place out”.

Acme denied that the issues raised by the employees were genuine or in good faith. The company was of the mistaken belief that the prosecution must prove that the employee believed that there is an issue about health or safety and that the issue is ‘raised on reasonable grounds'”. Acme also contended that Parliament “cannot have intended to allow safety issues to be used as a tool to mask industrial action, insubordination, or false claims”.

However, the court rejected these arguments and ultimately concluded that what must be proved is that is that the employee simply ‘raised an issue or concern about health or safety. It was submitted that nothing in the Act[2] requires the court to find proof of the employee’s state of mind at the time or whether a reasonable belief in the concerns raised truly existed.

Lessons for Employers

• Employers have an obligation to maintain the health, safety and welfare of all employees.
• Employers should provide information to their employees about how to make inquires or raise complaints about health and safety concerns.
• Ensure safe work policies and procedures in place are regularly reviewed.
• Ensure appropriate safety signs are displayed and all employees understand the meanings of those signs.