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
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  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
- (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?
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