Injured worker viciously abused loses adverse action claim


The Victorian Federal Court has very recently (March 2015) dismissed an injured worker’s claim that his employer took “adverse action” against him by exposing him to a manager’s extremely and outrageously abusive behaviour and by failing to offer/provide him with a return to work plan.

Injured worker viciously abused loses adverse action claim

The legal case

Regulski v State of Victoria [2015] FCA 206 (13 March 2015)

In March 2011, a Victorian Department of Justice worker (a compliance inspector) was called into his manager’s office to discuss a complaint made against him by another co-worker.

The Court heard that the manager was “in such a state of anger” that he “accidentally” slammed his office door shut on the worker’s foot, and put the worker through such a severe “dressing down” that he suffered a psychological injury and was “in no condition to return to his normal work”.

The Court heard and agreed that the injured worker’s manager made vile comments such as:

“Get in my fucking office. Sit your fucking arse down”

“You’re fucking shit. You’re a useless piece of fucking shit”

“I will take you down. I’ve dealt with bigger fish than you. No one is going to believe a piece of shit like you”;

“You’re useless. You’re fucking toxic. You’re fucking cancer”

The psychologically injured worker also told the Court that his manager had threatened to ensure he would never get t see his daughter again by rostering him on duty on every weekend that he was to see her.

The injured worker successfully lodged a workcover claim, and subsequently sought a Fair Work claim for his employer taking adverse action against him.

The injured worker told the Court that he believed the “real reason” his manager abused him was because he “exercised a workplace right” to refuse to participate in an inspection of a nightclub in end 2010. The injured worker alleged he refused so because “the tactics being used by the Department” were, in his opinion, illegal.

The injured worker also stated his employer “failed to provide him with any suitable return to work plan because he had complained about his manager’s gross bullying behaviour.

However the Court did not view it the same way as it found that the injured worker’s employer had consulted with the injured worker with re to his return to work plan at least 3 times.

The court subsequently stated the injured worker’s claim about his return to work plan was “not only disproved but quite far-fetched”. In addition the Court found that the employer did not fail to plan the injured worker’s return to work (plan) because he was and remained certified as unfit for all duties.

The Court (Justice Jessup) also stated there was “nothing in [the manager’s] angry reaction which had any plausible connection” to the injured worker’s refusal to take part in the night club inspection (about 5 months earlier) and found that the injured worker’s manager’s “vehement and vitriolic” tirade had nothing to do with the injured worker “exercising his workplace right” to refuse to perform a task.

You can read the full text of the legal case here: Regulski v State of Victoria [2015] FCA 206 (13 March 2015)

Mmmhhh….Not sure what to think about this case, but we do believe the injured worker!

Adverse action: a word about

This is action taken by a person or industrial association that is deemed unlawful under the General Protections provisions of the Fair Work Act. The meaning of ‘adverse action’ is defined in s342 of the Fair Work Act and includes dismissing or refusing to employ a person, and also includes discriminating against the person or otherwise injuring the person in their employment. Adverse action also includes action against an employee because he or she is engaging in a lawful industrial activity, and the dismissal of an employee who is temporarily absent from work due to illness or injury.
Adverse action covers acting, organising or threatening to and includes:
  • (if an employer or potential employer) dismissal, refusal to employ
  • injuring an employee in his/her employment
  • altering an employee’s position to his/her disadvantage
  • discriminating between an employee and other employees in the workplace
  • terminating, refusing the services of an independent contractor or detrimentally altering a contractor’s position
  • an employee ceasing to work for an employer or taking industrial action against the employer
  • an independent contractor ceasing work under the contract or taking industrial action against the principal.

‘Adverse action’ includes acting, organising or threatening adverse action. An independent contractor has the right to claim unlawful termination under the Fair Work Act (s365).

What are adverse action claims?

In order to make a general protections claim under the Fair Work Act employees simply need to allege that they were ‘adversely affected’ by a management decision made because of their workplace rights, or because they possessed a discriminatory attribute, eg race, sex, age, etc.
A simple example would be where an employee alleged that her employment had been terminated because she was pregnant. From that point, a ‘reverse onus or proof’ would apply and an employer must then prove the decision-making process that followed was not for that reason, but for an acceptable reason, such as continued and well documented under-performance combined with a lack of improvement.Advising, encouraging, inciting or coercing actionUnder the FWAct (s362), if for a particular reason (the first person) advises, encourages or incites, or takes any action with intent to coerce a second person to take action, and the action if taken by the second person for the first person’s reason would contravene a general protections provision, then the first person is taken to have contravened this provision.

3 Responses to “Injured worker viciously abused loses adverse action claim”

  1. Just wanted to say bloody good on the Beak for dismissing this Self absorbed Dickhead having a lend etc etc.
    My God were paying for this bullshit to happen on yours and mine Tax Payers funds.
    I’m so bored and don’t care if you have been bullied spoke to in a loud voice.

  2. Interesting article from a few aspects, thanks Workcovervictims.

    I wonder if the Compliance Inspector would have had more success claiming adverse action under injury. Or perhaps discrimination between employee’s about weekend rostering.

    The use of bad language through the eyes of the FWC & Courts appears to be progressing in a bad trend despite appearing more common place in society. To me it is the combination of word or words & tone used that makes the difference. And because of often multiple meanings of expression with bodily functions or sexual acts it is my view there is no place for it in Workplaces for management employee relationships. Unless maybe you’re in the sex industry… lol

    HardRockTuffNut April 20, 2015 at 9:33 am
read-before-u-commentThis is a statement pointing you to our seriously injured but esteemed and honourable Social Networking Sites Warning and our comment policy. A must read in the context of a very adversarial workcover system! Remember to mention in which state you reside if you seek advice.

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