Compensation granted for dismissed Stonemason

04 August 2022

The Federal Circuit and Family Court of Australia has found that an employee was dismissed due to work-related silicosis and enquiries regarding his leave entitlements.

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The employee began working for Willis Bros Installations in 1997 as an apprentice stonemason. Over time he became a director of the company and had obtained a 17% stake in the business at the time of dismissal.

At the commencement of his apprenticeship, the company failed to provide a mandatory face mask which resulted in the employee having to tie a t-shirt around his face. After 12 months, the employee’s trade school informed him that that it is compulsory for the business to provide the employee with a face mask.

Once his apprenticeship was completed, he continued to work for Willis Bros Installations. The work involved installing ceiling fans primarily to suck silica dust from the floor, which had the effect of circulating silica particles through the air.

Safe Work Australia states silica dust ‘is generated in workplace mechanical processes such as crushing, cutting, drilling, grinding, sawing or polishing of natural stone of man-made products that contain silica’. Silica particles are small enough to cause health issues including lung damage.

After multiple employees acquired silicosis in the industry, Work Health and Safety Queensland began to regularly visit Willis Bros Installations. WorkCover also began directing employees with silicosis to stop performing work in similar environments.

The employee was diagnosed with ‘lymph node silicosis’ and made a WorkCover claim.

Another director at the company became ‘increasingly aggressive and intimidating’ and directed the employee back to work, despite being aware the employee could no longer perform his pre-injury role. As a result, the employee went on stress leave and provided medical evidence.

In retaliation, his fuel card was cancelled, company phone diverted, and employee’s business vehicles were also recalled which significantly reduced his salary package.

Throughout the period of stress leave, the employee requested to know his leave balance, however the business failed to respond multiple times. They ultimately stopped paying any of the employee’s allowances and wages.

After being on extended leave for four months, Willis Bros Installations removed the employee as a director of the company and then terminated his employment ‘because he had taken excessive leave and because his absence was not based on the Worker’s Compensation and Rehabilitation Act’.

Decision

The Federal Circuit and Family Court of Australia found that following the employee’s diagnosis, the company believed he would be unable to continue working due to his physical disability. However, there was no evidence that the employee could not perform the inherent requirements of his role.

Additionally, it was held that there was no evidence that justified terminating the employee’s employment on the basis that he had exhausted his accrued leave entitlements.

Despite the business failing to keep a record of the employee’s accrued leave, the Court found it was likely that he had accumulated more than a year of annual leave entitlements.

The Court determined that the business took adverse action against the employee because he exercised reasonable workplace rights, including making enquiries about accrued leave entitlements and non-payment of leave entitlements. As a result, the court awarded the employee $160,000 in compensation and damages.

Learnings for business

This case highlights the importance of enabling employees to exercise workplace rights and entitlements under the Fair Work Act 2009 (Cth) and other relevant legislation.

It is important for businesses to ensure employees are treated in a fair and reasonable manner, and that decisions regarding health capacity and access to employee entitlements are based on evidence.

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