Actions were threats, not exercise of workplace rights

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Actions were threats, not exercise of workplace rights

Firing a worker for making threats against an employer's interests is not a form of adverse action, the Federal Circuit Court has held.

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By Dhruv Saggar

A worker's bid to revoke a letter of warning backfired... his employment was subsequently terminated because he made threats against the interests of his employer. Later, in an adverse action claim, the Federal Circuit Court held that his actions were indeed threats and were not an exercise of workplace rights.

Background


Ian Rothnie was employed as a refrigeration and air-conditioning technician at St John of God Hospital (Subiaco) in November 2009.

Mr Rothnie inspected a fan (AC33) in December 2010, where he noticed rusting and dust. However, he made no formal report to the Building Engineering Information Management System (BEIMS).

Mr Rothnie and Mr Lee repaired the fan in June 2011, and reported no concerns. The fan malfunctioned on 15 November 2011 because of corrosion in the fan blades caused by rust. A technical report by CBD Refrigeration & Air Conditioning Services suggested the failures should have been apparent for several months.

Mr Rothnie received a letter of warning on 16 December 2011. He sent a letter to upper management (Dr Kelly and Mr Cooper) at Subiaco, seeking that the letter be retracted.

Mr Rothnie discussed his future with Dr Kelly and Mr Cooper on 10 February 2012.

At that meeting Mr Rothnie put forward that he ought to be paid $250,000 as a “redundancy”, but which included a sum of $30,000 which he described in the meeting as a “premium for the good will of the hospital”.

Some quotes from the exchange included:

Mr Rothnie: “I've got access to the media just like that, that's not a threat or anything.”

Dr Kelly: “Sounds like it to me.”

Dr Kelly: “It's blackmail.”

Mr Rothnie: “It's not blackmail.”

Mr Cooper’s evidence was that Mr Rothnie was evincing an intention to involve the media in a dispute if he did not receive money and that he was linking the media with his demand for money

On 13 February 2012, Mr Rothnie was stood down.

A meeting was arranged on 24 September 2012 regarding Mr Rothnie’s actions during the 10 February meeting. Mr Rothnie was then fired on the grounds of serious misconduct due to his threats.

Legal arguments

Letter of warning

Mr Rothnie argued that the BEIMS did not provide for specific maintenance on each piece of equipment. Mr Rothnie argued that it was another person who turned AC33 off without tagging it. AC33 was later turned on without checking if it had been repaired. Those two parties involved did not receive any warnings for their negligence. Mr Rothnie’s treatment was therefore discrimination.

Further, there were factors outside of his control that contributed to the failure of AC33. There was a systematic failure of maintenance over a long period of time so that the failure coulnd't be attributed only to Mr Rothnie. Additionally, Mr Rothnie did not treat AC33 due to WHS concerns and the incorrect tagging was also a factor in AC33 failing to work.

Termination

Mr Rothnie also argued that his termination was because he exercised his workplace rights to complain or make an inquiry to his employer, rather than misconduct.

The legal issues


Section 340 of the Fair Work Act prohibits employers from taking adverse action against employees for exercising their workplace rights. Section 19 and 19A of the Occupational Safety and Health Act prohibit carrying out work where it would be unsafe to do so.

Section 341(1) states that workplace rights include making complaints against employers.

Decision

Letter of warning

Judge Antoni Lucev found that Mr Rothnie should have noticed the rust on AC33 and should have reported it in writing so it could be dealt with. The evidence showed that the reason for the letter of warning was because of the poor quality of Mr Rothnie’s inspection in June 2011 rather than exercising any workplace right.

Judge Lucev refused Mr Rothnie’s claim that he refused to inspect AC33 properly for WHS reasons. The findings in December 2010 showed that two experienced technicians should have conducted a proper investigation.

There was also no discrimination by Subiaco. Since the letter was only regarding the June 2011 incident, it was logical that the only parties receiving the warning were Mr Rothnie and Mr Lee, who was also present during the inspection. Judge Lucev states:

“The comparisons sought by Mr Rothnie do not compare like incidents or like conduct, and the assertions made are so broad and indiscriminate…”

Termination of employment

Judge Lucev dismissed Mr Rothnie’s argument that he was terminated because he exercised a workplace right. Mr Rothnie was not discussing his issues with WHS or about dispute settlement procedures. Instead, he was making a threat “with an intent to obtain a benefit”.

Further, Mr Rothnie had no workplace right to demand the money he wanted. Judge Lucev viewed his demand of $30,000 goodwill as “little more than ransom money”.

Order


Mr Rothnie’s application was dismissed.

Rothnie v St John of God Hospital (No.2) [2017] FCCA 3129 (14 December 2017)

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