HEAVY FINES FOR SACKING IN CIRCUMSTANCES OF DISCRIMINATIONNovember 22, 2022
A recent decision by Federal Circuit and Family Court Judge Amanda Tonkin saw justice served for veteran stonemason Timothy John Rutley when his previous employer was ordered to pay another $76,000 in fines for unlawful and discriminatory adverse action.
The stone benchtops company Willis Bros Installations was ordered to pay $162,000 in compensation and damages to Mr. Rutley in a general protections ruling earlier in June this year for being unfairly dismissed for his physical disability.
Mr. Rutley worked for Willis Bros Installations for 20 years, beginning as an apprentice in 1997, he worked his way to becoming a production and installation manager and was a director and shareholder by the time of his dismissal. In 2018 both he and his brother who also worked for Willis Bros were diagnosed with lymph node silicosis. Shortly after becoming ill with the work-related disease Mr Rutley was subject to poor treatment by the company’s majority shareholder, another director who removed him as a director and repeatedly told him to “get back on the tools” even though he was well aware that Mr. Rutley was physically unable to do so.
The employer reduced Mr. Rutley’s salary package and also cancelled his petrol card, diverted his work phone to the office and took back both vehicles that he and his wife had been using. He soon after went on extended stress leave and even though he had medical certificates to support his time off work, the company stopped paying his wages and terminated his employment. Their reason was he had used all of his leave entitlements, yet they didn’t have any record of his leave accrual failing to meet the employer obligations under the Fair Work Act 2009.
Judge Amanda Tonkin found Willis Bros Installations contravened the Fair Work Act 2009 by taking adverse action against him by terminating his employment because he had a disability (s351), as well as taking adverse action in injuring the employer in his employment because he exercised his workplace right by making a compensation claim and by terminating his employment because he exercised a workplace right to make an inquiry in relation to his employment (s340). The judge fined the company $44,100 for the first two contraventions and $31,500 for the third.
While the judge agreed that Mr. Rutley would not be able to fulfil the physical side of his role she found there was no evidence that he couldn’t continue his managerial role. In regards to the company’s allegation of him exhausting his leave entitlements the judge found that as there was no record keeping of accrued leave, it was likely he had accrued more than a year of annual leave.
While the fines were above 50% of the usual amount for such penalties, and the fact that Willis Bros continues to operate, the judge said there was a need to ensure it “cannot simply ignore its statutory obligations to maintain employee business records and then rely on that failure to unlawfully terminate an employee’s employment”.