What is ‘injuring’ the employee in his or her employment?

Injuring the employee in his or her employment covers injury of any compensable kind.[1]

‘Injury’ refers to deprivation of one or more immediate practical incidents of employment, such as loss of pay or reduction in rank.[2]

‘Injuring the employee in his or her employment’ has also been taken to have a wider meaning than financial injury or injury involving deprivation of rights which the employee has under a contract of service. It can be applicable to any circumstances where an employee in the course of his or her employment is treated substantially differently to the manner in which he or she is ordinarily treated and where that treatment can be seen to be injurious or prejudicial.[3]

‘Singling out’ has been used as a way of categorising a particular injury in employment.[4] However, it does not in itself constitute injurious treatment. The ‘injury’ in this context continues to refer to the deprivation of one of the more immediate practical incidents of employment.[5]

Employee injured in his or her employment

Forced removal of a worker from a worksite

Construction Forestry Mining & Energy Union v Hamberger [2003] FCAFC 38 (10 March 2003), [(2003) 127 FCR 309].

Union officials demanded that an employer remove an employee from a worksite because he had refused to pay union fees and sought to resign from the union.

The Court found that the forced removal of a worker from a worksite was sufficient to constitute injury to them in their employment.

Transferring employee to a different worksite

Byrne v Australian Ophthalmic Supplies Pty Ltd [2008] FCA 66 (14 February 2008), [(2008) 169 IR 236].

The employee complained to ‘Wageline’ about the under-payment of wages and entitlements. The employer transferred the employee from a store located reasonably close to her home to one which was a considerable distance from her home. When she refused to be transferred she was suspended.

The Court found both the transfer and the suspension to be an injury to the employee in her employment and an alteration of her position to her prejudice.

Stand down

Re Richard James Squires v Flight Stewards Association of Australia [1982] FCA 165 (19 August 1982), [(1982) 2 IR 155].

An employer stood an employee down at the direction of a union because the employee had refused to engage in industrial action.

The Court found the employer’s action injured the employee in his employment.

‘Take-it-or-leave-it’

Fair Work Ombudsman v F.L. Press Pty Ltd & Anor [2015] FCCA 1578 (18 June 2015).

The Federal Circuit Court found that a newspaper publisher took adverse action when it attempted to force a full-time journalist to sign a statement, drafted for him, stating that he had requested and agreed to the employer terminating his full-time position and having his entitlements paid in instalments. The employer changed the journalist’s employment status from full-time to part-time and reduced his work hours from 5 days per week to 2 days per week. It was also alleged that the publisher threatened the journalist by saying that he would not be paid anything if he did not agree to have his entitlements paid in instalments.

Employee NOT injured in his or her employment

Verbal abuse – intimidation

Australian Licensed Aircraft Engineers Association v Qantas Airways Ltd & Anor[2011] FMCA 58 (11 February 2011), [(2011) 201 IR 441].

The employee claimed that he was verbally abused and intimidated as a result of a pay claim and was denied an opportunity for promotion.

The Court held that the employer’s reaction to the employee’s queries altered his position to his prejudice in that it reduced his status in relation to his colleagues and it upset him. However, this did not constitute an ‘injury’ as the employer’s actions had not impacted negatively upon one or more of the immediate practical incidents of employment such as remuneration, duties or hours of work and had not resulted in an injury of any compensable kind.