Taking care when taking disciplinary action against HSRs
The protection against discrimination for health and safety committee members and health and safety representatives (HSRs) who raise COVID-related concerns is an area that businesses need to watch closely.
In late 2021, SafeWork NSW commenced a prosecution against Qantas, alleging that it had adversely treated an HSR who had raised issues in 2020 about the cleaning of planes from overseas. Qantas stood down the HSR; although the company asserted that it did so to undertake an investigation into the HSRs alleged breach of conduct policy.
Under the harmonised Work Health and Safety Act, committee members and HSRs are protected from discriminatory conduct. In part, the protection means that a person cannot take adverse action again the individual to their detriment if they exercise, or propose to exercise, their functions as a committee member or HSR.
To ensure that you do not fall foul of these laws, be careful that any proposed disciplinary action is not related to the fact that safety issues have been raised by a committee member or HSR. This approach can be challenging if the worker acts in an improper manner while discharging their duties, e.g. acting in a threatening or aggressive manner. In such a case, it is important to clearly distinguish the actions of the person that may amount to misconduct from the raising of legitimate safety concerns.
Further, it is important that committee members and HSRs are clear on the purpose and scope of their role and, equally, that the rest of the organisation understands this function. Training on the roles of committee members and HSRs is a critical part of developing this understanding.
The potential fines that an employer, like Qantas, are exposed to are significant. At the time of the offence, they were $500,000 and have now increased to nearly $600,000.
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