Safety-related discrimination makes legal history

Tuesday, 21 October, 2003

In an Australia first, WorkSafe Victoria has successfully prosecuted a company for discriminating against a worker who raised concerns about an occupational health and safety issue.

The charge was laid after a 48 year old truck driver was sent home and told not to return to work when he refused to drive a B-double truck because two brakes needed work done on them.

Dismissing an employee because they made a complaint about health and safety is illegal under the Occupational Health and Safety Act 1985. The Act also protects health and safety representatives or employees who give information to WorkSafe.

Laverton North-based transport company, Boyland Distribution Services Pty Ltd, pleaded not guilty to one charge under the Act in the Sunshine Magistrates' Court on 14 July.

The defence argued it was the driver's unsatisfactory work performance that led to him being dismissed, saying his refusal to drive the vehicle was the last straw.

However, Magistrate Donna Bakos found the company guilty and reserved sentencing to a date to be set.

"This case is also a good example about the importance of ensuring communication between employers and their staff," said WorkSafe Executive Director, John Merritt.

"In this case, a truck driver was told to drive a B-double which had a 'Do Not Use' sign on it. Although the mechanic concerned had advised the supervisor that the truck was safe to drive on that day, this information was not passed on to the driver.

"In this case, any misunderstanding could have been cleared up if the supervisor, mechanic and truck driver had spent just a few minutes together discussing the problem."

The court was told the truck driver had been working as a casual but had been getting around 38 hours each week between July and November 2001.

It was alleged that on 12 November, the driver was told to remove a 'Do Not Use' sign from a B-double trailer. The sign was placed on the trailer by an apprentice mechanic because two brakes needed re-lining.

The driver told the court that on the day in question, it was overcast, with heavy rain. While not specifically told the reason for the sign being on the trailer, he said he had reservations about driving it in the conditions. He said such signs usually indicated a maintenance issue, so he decided it was not safe to drive the vehicle. When he told his supervisor of his decision, he was told to go home. The next day, the driver rang in for his start time, as was normal practice, but was told he was no longer required.

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