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Black Saturday survivor wins claim against employer

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The Victorian Civil and Administration Tribunal last month found an employer liable to pay damages of $5,000 for the way a survivor of the Black Saturday bushfires was treated after returning to work after the fires.

Aitken Hill provides conference and accommodation facilities in outer Melbourne.  Anne Laviya worked for Aitken Hill as a house-keeping/public areas team leader.

The facts

On 7 February 2009, during the Black Saturday bushfires, Ms Laviya was in her home near Kinglake, when a fire approached her house.  The fire damaged the water tank and her car, which was in the driveway, but the wind then changed, suddenly sending the fire away from the house. The house next door across a paddock exploded, but her house was spared and she and her housemate survived.

After the fire, Ms Laviya had no power and services.  She and her flatmate lived on food in the house but could not have a shower. They had difficulty getting water.

At 2pm on the day after the fires, Ms Laviya’s supervisor, Ms Jennings started calling. Ms Laviya first thought the calls were out of concern, but in fact Ms Jennings was calling daily to see when Ms Laviya was coming back to work as they were really busy.

Finally, after continuous and long calls, Ms Laviya agreed to go to work on the Thursday following the bushfires.  When she got to work, Ms Jennings told her, “You look terrible.”  Ms Laviya said, “I’m quite dehydrated, I’m not feeling the best, I’m a bit nauseated…Seriously, I’m not feeling the best. I don’t think I can do this.”

Ms Jenning’s replay was, “Look, I’ve been watching it on TV, I’ve been affected too. I’ve been affected by what I’ve seen, yet I still came in.”  

After further similar discussions, Ms Laviya resigned on the spot as a result of the way she was treated on the day, but she was eventually persuaded to return to work.

Her employment was, however, terminated by the employer on 22 May 2009 for “lack of work.”

The findings

VCAT found that Ms Jennings and Aitken Hill were liable to pay $3,000 in damages for imposing the condition to return to work.  The employer’s actions were found to constitute discrimination on the basis of an impairment.  Ms Laviya’s impairment was described as being, “a malfunction of the body, namely, being severely upset to the extent that she was unable to cope with the demands of her job…  The degree of upset was well outside what might be considered the normal range of upset.”

A further $2,000 was imposed for sexual harassment by other employees relating to other events since Black Saturday.

While the real reason for the termination of Ms Laviya’s employment was less than clear, VCAT did not award any remedy as a result of the termination.

Tips for employers

This case serves as a reminder to employers that they may be found to be responsible for the bad behaviour of their staff.  To avoid liability, under Victorian law, an employer must show, on the balance of probabilities, that it took reasonable precautions to prevent the employee from discriminating or harassing the complainant.  Employers should deliver (and be able to substantiate with records) ongoing training on harassment and discrimination and proper management of staff issues.

In this case, while Aitken Hill had an information pack for employees with a very limited chapter on its “Employment Equality Policy,” VCAT found the manual was insufficient and that no proper training on sexual harassment and discrimination had been provided.

Our Workplace Relations lawyers have extensive experience in assisting its clients with complying with the most current workplace relations laws, including advice relating to discrimination.

Author:  Richard Scougall

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