“Fait accompli”: Court orders compensation for employee with heart condition told to look for alternative work

A safety equipment company has been forced to compensate an employee with a heart condition after it told him to look for alternative work.

The Federal Circuit Court found Melbourne-based Sayfa Systems had taken an adverse action against employee David Heriot when it dismissed him due to his heart condition, rejecting the company’s claim Heriot left his job by “mutual agreement”.

Judge Michael Jarrett ordered the company to pay a total of $5500 to compensate Heriot.

Sayfa had employed Heriot to install safety products at significant heights but in June last year, he fell ill at work and was hospitalised.

After he returned to work nine days later, Heriot was called to a meeting with two company managers who gave him a letter telling him to, “stop and reprogram your life so that this condition does not re-occur nor have any detrimental effect on your family or future physical performance.”

“Due to the fact that your job with us involves strenuous climbing and often high risk work, we are unable to let you continue this function for OH&S reasons and feel that it would be in our mutual interest for you to get work that is less strenuous and not likely to cause a repeat of the problem,” the letter said.

“With this in mind, and having no immediate alternative to offer you, we would reluctantly ask you to look for alternative employment.”

Sayfa offered Heriot two months’ salary in lieu of notice, his annual leave entitlements and a $2000 car allowance if he agreed to the conditions. Heriot was also required to not work for another height safety company for two years.

While Heriot initially accepted the offer, he later brought the adverse action claim against the company believing the dismissal contravened discrimination and temporary absence provisions of the Fair Work Act.

Sayfa argued that it had not taken adverse action against Heriot because there was no dismissal, as Heriot had agreed to accept his resignation.

However, Judge Jarrett found Heriot’s dismissal was a “fait accompli” when managers called to the meeting.

“He had no choice,” said Judge Jarrett in the judgement. “He was presented with a letter in the course of the meeting which he was asked to sign. It is certainly the case that he may have refused to sign the letter, but his evidence was that if he did so, he thought he would get nothing”. 

“Terminating an employee’s employment, whether it be by mutual agreement or not, is the taking of adverse action against the employee,” the judge said.

The judge ordered the company to pay Heriot $2200 for lost earnings and interest, plus a $3300 penalty.

M+K Lawyers partner Andrew Douglas told SmartCompany while an employer can terminate an employee who is not fit for the inherent requirements of a job with reasonable adjustments, Sayfa breached the adverse action because it failed to have an appropriate legal basis to terminate Heriot.

“The way they went about it was poor,” says Douglas. “They did everything you wouldn’t do.”

Douglas says the lesson for all employers around injured workers is they must get advice and set up a process relying on appropriate medical evidence, while also considering reasonable adjustments to an employee’s role.

Douglas says while the compensation in this case was low, the legal expenses of defending an adverse action in court are enormous, and in this case, it was likely to have come straight out of Sayfa’s profit.

“If they’d done the right thing when dismissing [Heriot], no one would have given him advice for an adverse action. If they let him down in a gentle way… but they didn’t and he got his back up,” he says.

“Had they had handled it appropriately, without these triggers, they would have avoided litigation.”

Sayfa was contacted for comment but SmartCompany did not receive a response prior to publication.