McNamara v Era Pacific Pty Ltd

In *McNamara v Era Pacific Pty Ltd*, the applicant, Michael McNamara, alleged that his employer, Era Pacific Pty Ltd, and its sole director, Malcolm Lightfoot, took adverse action against him in contravention of section 340 of the *Fair Work Act 2009* (Cth). Mr McNamara contended that his dismissal on 18 June 2020 was because he exercised a workplace right, specifically the right to refuse to perform work that would expose him to a safety risk, as provided by section 84 of the *Work Health and Safety Act 2011* (Qld). He sought compensation and the imposition of pecuniary penalties for these alleged breaches.

The court was required to determine whether Mr McNamara exercised a workplace right under subsection 341(1) of the *Fair Work Act 2009* (Cth), whether adverse action was taken against him because he exercised such a right, and whether the respondents discharged the presumption imposed by subsection 361(a) of the Act. Ultimately, the court had to decide if Era Pacific Pty Ltd, through the actions of Mr Lightfoot, contravened section 340 of the *Fair Work Act 2009* (Cth).

The court found that Mr McNamara possessed a workplace right under the *Work Health and Safety Act 2011* (Qld) to refuse work posing a serious risk to his health and safety, and that this right was a workplace law for the purposes of the *Fair Work Act 2009* (Cth). It was not disputed that dismissal constituted adverse action. Applying the principles from *Ingersole v Castle Hill Country Club Limited*, the court noted that once the applicant establishes the existence of a workplace right and that adverse action was taken, the onus shifts to the respondent to prove that the action was not taken for the prohibited reason. The court declared that Era Pacific Pty Ltd contravened subsection 340(1) of the *Fair Work Act 2009* (Cth) by terminating Mr McNamara's employment because he exercised a workplace right. Furthermore, Malcolm Lightfoot was found to be involved in this contravention.

Consequently, the court ordered Era Pacific Pty Ltd and Malcolm Lightfoot to pay compensation to Mr McNamara totalling $19,463.55, plus interest of $740.95. Era Pacific Pty Ltd was also ordered to pay $1372.04 to Mr McNamara's nominated superannuation fund. Pecuniary penalties were imposed, with Era Pacific Pty Ltd ordered to pay $6600 and Malcolm Lightfoot $1320, with both respondents being jointly and severally liable for these amounts. A portion of these penalties was to be paid directly to the applicant, with the balance to be paid to the Consolidated Revenue Fund of the Commonwealth.