Tuesday, 07 April 2015 3:43pm
An employer took adverse action against an injured worker by changing his 90-hour week to a part-time arrangement after he claimed workers' compensation, the Federal Circuit Court has found.
In Sydney, the Court found the employer halved the worker's hours to avoid the increased costs associated with placing him on an injury management plan.
The worker was employed by Tiy Loy & Co Ltd – which provided Chinese immigrants with services and a space to play mahjong – and worked 90 hours a week performing duties such as preparing food and cleaning.
In January 2012, he fractured his ankle while taking a bin out. He successfully claimed workers' compensation, and his employer was required to prepare an injury management plan for him that aligned with his work restrictions.
These restrictions included working eight hours a day for five days a week, avoiding walking or standing for more than 30 minutes at a time, and resting for five minutes every hour.
In June 2012, the employer told the worker that he would only be required to work three days a week from 1 July 2012.
The worker told the Court the employer took adverse action against him by changing his role to part-time because he exercised his workplace right to claim compensation.
The employer claimed it reduced the worker's hours because it wanted to cut costs after a downturn in its revenue.
But Judge Nicholas Manousaridis found "it could reasonably be inferred [the employer] decided to alter [the worker's] employment because it desired to reduce or eliminate costs it expected it would incur if it were to participate in an [injury management plan]".
He said the worker's restrictions "posed a problem" for the employer because 50 of the 90 hours he previously worked would have to be performed by another person.
"To employ additional labour to do the work [the worker] was unable to do represented the potential of significant additional cost," he said.
"One way of avoiding that cost was to reduce [the worker's] position to a part-time position, and use the saving in wages that decision would involve to pay someone else to do the work [he] would be unable to perform."
Judge Manousaridis found the employer's actions constituted dismissal of the worker (who left the company after his arrangements were altered) and adverse action, which resulted in him losing wages from July 2012 until September 2013, when he turned 65.
He ordered the parties to make submissions as to compensation and costs.
He noted that the employer's conduct wouldn't have constituted dismissal if it had given the worker reasonable notice of the changes to his employment.
Cai v Tiy Loy & Co Ltd [2015] FCCA 715 (27 March 2015)