The Tribunal has dismissed an application made by a Safety Operations Business Partner relating to his dismissal, under s 112 of the Work Health and Safety Act 2020 (WA) (WHS Act).

The applicant, who was dismissed by the respondent in April 2023, applied to the Work Health and Safety Tribunal, believing he was the subject of discriminatory conduct for a prohibited reason. He maintained that after he raised a work health and safety issue within the business, the respondent took discriminatory action against him by placing him on a performance plan and later dismissing him.

The respondent applied to have the application dismissed. The respondent alleged that the applicant was facing the disciplinary proceedings due to his breach of its Code of Conduct (Code). The respondent accepted that dismissing the applicant amounted to discriminatory conduct under the WHS Act but disagreed about whether the performance plan amounted to discriminatory conduct. It maintained, however, that the performance plan and subsequent dismissal was not for prohibited reason, but rather, because of the applicant’s preceding misconduct.

The Tribunal found that the respondent did take discriminatory action against the applicant when it dismissed him. However, it held that the respondent did so because the applicant breached the Code. This was, therefore, for a reason other than a prohibited reason. In relation to the performance plan, the Tribunal determined that the plan did not alter the applicant’s employment position to his detriment, rather, it sought to support and guide his performance. As such, the Tribunal declined to make an order in the applicant’s favour and dismissed the application.

 

The decision can be read here.