Employment Law – Background
The Federal Circuit Court has determined that Australian Western Railroad took adverse action against a train driver when they cancelled his supervisor training after he refused to work a shift as a result of carer’s responsibilities and fatigue.
Employment Law – Facts
In essence:
- the driver refused to work a “put-back shift” when a 3pm train he was rostered to drive was delayed by more than 3 hours
- the driver claimed that he would be unable to work his shift because he would be fatigued, which was the result of his carer’s responsibilities. He argued that his absence should be recorded as carers leave
- he argued that he had been primary caregiver of his children since 2011 due to compilations in his wife’s pregnancy which left her unable to care for the children
- the driver claimed that he would be incapable of resting and his children would need to be cared for and would be making noise preventing him from resting
- Six days after he took carer’s leave, the company cancelled the driver’s operations supervisor training
Employment Law Decision
The Federal Circuit Court:
- concluded that the company breached s340(1)(a)(i) and (i) prohibitions on taking adverse action because of the exercise of a workplace right under/for discriminatory reasons under s351(1) of the Fair Work Act by cancelling training
- in addition, held that cancelling the training also constituted an alteration of the driver’s position to his prejudice under s342(1) item 1(c)
- consequently, believed that the delivery manager’s decision to stop supervisor training and not to reinstate it “was informed by the view” that the driver had a “lack of commitment and poor attitude”, and it was this against the background of the driver exercising his workplace right to carer’s leave which formed the basis of the adverse action and discrimination.
- held that the delivery manager was wrong in labeling the drivers claims he was exercising his workplace right to carer’s leave as disingenuous
The decision is available for you to read through the hyperlink:
Employment Law – Tips for Employers
Our Matthews Folbigg Workplace Solutions employment law team recommends employers:
- review this employment law decision
- seek the assistance of an employment lawyer to understand the impacts of this employment law decision
- train staff on this employment law decision
- ensure compliance with all employment laws including Fair Work Commission decisions, Awards and enterprise agreements
- fairly, consistently and lawfully respond to breaches of employment contracts and employment law policies
- penalties can apply for breaches of employment laws including Awards and enterprise agreements (which an employment lawyer can advise on)
Employment Law – More Information
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