By Asher Lindsay (Senior Associate) of Herbert Smith Freehills.
A recent decision of the Victorian Supreme Court of Appeal has considered the ‘prohibition against discrimination’ offence provisions in the Occupational Health and Safety Act 2004 (Vic) (OHSA).
Judicial consideration of these provisions is rare. In the harmonised jurisdictions there has been none. That said, the case demonstrates a trend we are seeing in regulators’ use of the full breadth of safety legislation in all jurisdictions. It is also a cautionary reminder that if a worker has raised or is even involved in a safety issue, this may be a strategy they seek to rely on, for example, to access remedies that they no longer have access to under the Fair Work Act 2009 (Cth).
What did the Court say in DPP v Acme Storage Pty Ltd (a Pseudonym)  VSCA 90?
There were 7 charges laid against Acme Storage of discrimination against an employee in contravention of s76(2) of the OHSA. Section 76(2) relevantly says that it is an offence to dismiss an employee, injure an employee in employment or alter an employee’s position to their detriment or threaten to do any of these things because an employee raised an issue or concern about health and safety. The corresponding provisions in the harmonised jurisdictions are ss 104-106 of the Work Health and Safety Act (Cth).
Before the trial, the prosecution and the defendant could not agree on the elements of the offence and a ‘case stated’ was put to the Supreme Court of Appeal. The Supreme Court of Appeal had to consider a number of questions about the offence as charged. For present purposes, there were two main issues:
- Raising an issue or concern about health and safety
Acme Storage said that the prosecution was required to prove that the employee ‘believed’ that there was an issue or concern about health and safety and that it was raised on reasonable grounds. Safety issues could not be used to mask industrial or other employment related issues. The Court said that the provision did not require this at all. What must be proved is only that the employee raised the issue or concern about health and safety. This is a question of fact, taking into account the relevant circumstances (which could include, for example, evidence establishing that the employee acted disingenuously or for an ulterior purpose). The Court said in relation to Acme Storage’s suggestion that there was a dichotomy between safety issues on the one hand and industrial issues on the other:
That is a false dichotomy in our view. Plainly enough, safety in the workplace is an industrial issue of great importance to both employers and employees. the mere fact that a safety issue was raised as part of, or in connection with, the pursuit of other industrial objectives would not necessarily mean that an offence of this kind could not be provided. The context in which a safety issues is raised will, of course, be an important part of the circumstances by reference to which the jury decides the question of fact concerning the employees’ conduct.
- Threatens to alter the position of an employee to the employee’s detriment
Acme Storage said that this element required an intention to carry out the threat and that the threat be communicated to the employee. The Court said that intention to carry out the threat was immaterial, as was communication of the threat to the employee. All that was required was the intention to make a ‘declaration of an intention or determination to inflict punishment, pain or loss on someone’ (ie threat as defined in the Macquarie Dictionary), made to the employee or a third party. Again, this was a question of fact, having regard to all the relevant circumstances.
Things to be aware of
- The Court was quite disparaging of the case stated to it. Nonetheless, the decision provides some guidance on how the Courts, in harmonised and non-harmonised jurisdictions, are likely to approach the elements of the offence of WHS discrimination.
- Whilst there is no positive requirement for the prosecution to establish an issue or concern as being reasonably held, evidence of the surrounding circumstances can be produced and taken into account.
- We are aware of at least one application by a disgruntled former employee seeking reinstatement 364 days after his termination (which would make it well out of time under the Fair Work Act) by relying on the discrimination provisions of the WHS Act. He had raised a WHS concern, and said that his termination was discriminatory and for a prohibited reason entitling him to reinstatement on application to the Magistrates Court. That application needs to be brought within 1 year of the date on which the applicant knew, or ought to have known that the cause of action accrued.
If a dismissed employee had been involved in a WHS concern at the time of their dismissal, then be aware that this risk exists and you may face a reinstatement application for up to 1 year following termination. These proceedings attract costs so that will also distinguish them from Commission proceedings. Note also that injunctive relief and compensation can be ordered. Finally, the mere allegation of discriminatory conduct triggers a reverse onus, meaning the employer must disprove the allegation.
Link to case: DPP v Acme Storage Pty Ltd (a Pseudonym)  VSCA 90
This article initially appeared on the Herbert Smith Freehills blog, Employment Notes, and has been reproduced with permission.