Employer fined $125,000 for ‘hurt and humiliation’ of disabled worker

By Portner Press on November 26th, 2019
  1. Bullying, Harassment & Discrimination
  2. Discrimination in the workplace

 

In Bristow v Sonny’s Restaurant & Bar & Ors (2019), an employer was ordered to pay around $125,000 for the “extremely hurtful” way it treated a worker suffering with chronic regional pain syndrome and fibromyalgia.

Out of that penalty, more than $70,000 was paid to the worker in compensation.

She had worked with the employer for just less than three months.

Brisbane Federal Circuit Court Judge Salvatore Vasta found the employer had taken adverse action against the worker because of her disability, as well as for exercising her right to report unsafe work practices.

Complete disregard for workplace laws

When the hospitality worker commenced employment, the employer directed her to report to a site it was refurbishing to undertake building and construction work she was not qualified to perform. She did not perform any hospitality work during her employment.

Judge Vasta heard that the worker, through her job network provider, twice had to question her pay amount and on another occasion query why tax and superannuation were not being paid on the worker’s behalf.

The worker also raised safety complaints when she witnessed:

  • a worker with no qualifications being directed to work with live electrical wiring;
  • no eye protectors or respiratory devices provided to staff while they were sanding;
  • no proper ladders or scaffolding provided for working at height;
  • no properly stocked first aid kit provided;
  • no first aid officer on site;
  • no incident reporting system in place;
  • no emergency evacuation or first aid guide or procedures in place;
  • performing physical labour in temperatures exceeding 35 degrees Celsius;
  • inadequate equipment for moving heavy items; and
  • no safety boots provided.

The worker further claimed that she had been pressured to attend work despite having a valid medical certificate that certified her unfit for work.

Sacked for needing medical treatment and questioning pay

After the worker had sustained a wrist injury at work which required two days off, she returned to work against the advice of her doctor. This exacerbated a pre-existing injury she had to her left shoulder and upper back, causing her to struggle with her duties.

At this point, one of the owners began to harass her in front of her colleagues and openly discussed her medical issues.

The worker had to take another day off for a scheduled neurologist appointment, which she had organised pre-approved leave for.

The following day, the employer sent her an unexpected email terminating her employment.

The email expressly cited among the reasons for terminating the employment was the “complaint about receiving $500 in cash as opposed to a direct transfer of funds”.

The email also complained about the worker’s absences from the workplace due to her medical conditions.

The worker was not provided with notice of her dismissal, nor any notice pay or payout of entitlements.

Numerous Fair Work Act breaches

The employer had committed eight Fair Work Act breaches by:

  • Taking adverse action against the worker for exercising a workplace right by making a complaint or enquiry in relation to her employment.
  • Taking adverse action against the worker because of her disability.
  • Taking adverse action against the worker by summarily dismissing her because of her disability.
  • Contravening National Employment Standards in relation to pay.
  • Contravening a modern award in relation to pay.
  • Not fully paying the worker for work performed.
  • Not meeting worker record-keeping requirements.
  • Not issuing the worker with payslips.

‘Unkind’ employer must pay a hefty price

“[The worker] deposed that she had been particularly humiliated by the manner of her termination, particularly by the suggestion that she had been ungrateful for having been employed by the first respondent notwithstanding her disability,” Judge Vasta said.

“That uncontested allegation was most unkind, and would have been extremely hurtful to the applicant.”

Judge Vasta ordered that the employer pay the worker $12,500 for “such hurt and humiliation” and reimburse her $2,970.25 for underpaid wages.

The employer was fined a further $113,400 for its breaches of the Fair Work Act.

Judge Vasta ordered this amount to be split equally between the worker and the Commonwealth.

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