Fair Work Australia reinstates worker sacked over paintball injury

A worker at the Pratt family’s packaging giant Visy has won his job back after Fair Work Australia found the company had unfairly dismissed him over a paintball injury that left him unable to do his job.

But the reprieve for the worker may be temporary. In an unusual twist, Fair Work Australia has acknowledged that Visy may in fact be able to terminate the worker again if his workers compensation claim is not found to be related to an injury suffered at work.

The unfair dismissal case was brought by Stuart Bormann, a worker at Visy Board’s Adelaide plant.

In October 2008, Bormann, who has made several workers compensation injury claims in the past, injured his back in a non-work-related paint balling injury.

After a period off work during which he claimed income protection insurance, Bormann returned to work in July 2009 on restricted duties but complained of further pain.

But he was stood down in December 2009, after Visy informed him that it was concerned that “continuing to allow him to work would breach its duty of care”. Bormann was told he could apply for either income protection insurance or workers compensation, which he subsequently did.

In August 2010, he was terminated, with Visy claiming Bormann had failed to keep the company regularly informed of changes in his condition.

Bormann disputed this, arguing he did not have a responsibility to inform the company when his condition remained the same.

Fair Work Australia senior deputy president Matthew O’Callaghan agreed, finding that the termination was “harsh, unjust and unreasonable in that, in the circumstances of this situation, it lacked a valid reason and was procedurally unfair.”

“Specifically, I consider it to be harsh in that Mr Bormann was not unequivocally told of a requirement that he maintain regular contact with Visy Board in order to preserve his employment standing, as distinct from providing advice when his condition improved.”

Bormann was reinstated to his position, which was to be on authorised sick leave without pay.

However, O’Callaghan expressed “some reservations about the utility of such an order”.

As the workers compensation investigation into his claim is still on-going, there is a chance he will be found to have received his injury in a non-work status, in which case Visy will be in a position to terminate his employment lawfully.