WA: Rio fined for discrmination

Rio Tinto will have to pay $35,500 to the Construction Forestry Mining and Energy Union because senior Rio management changed the ‘satisfactory’ performance assessment of a worker who stood his ground to ‘unsatisfactory’ to get rid of him.

In a decision published today, Federal Court Justice Anna Katzmann considered the contravention of the Federal Fair Work Act “serious”, and a further two of four breaches in total “grave”.

Daryl Lamberth had been employed on a 12-month contract as a trainee car examiner with Pilbara Iron Company (Services), a subsidiary of Rio, with the prospect of permanent employment at the end of the year.

Soon after he was hired, Mr Lamberth – a former occupational health and safety representative – started making OH&S complaints against Rio.

IRRITATED SUPERVISORS

Justice Katzmann heard recently that this irritated Mr Lamberth’s supervisors.
After an altercation with one supervisor Mr Lamberth decided to join the militant CFMEU.

He quickly became an enthusiastic member, encouraging other employees to join, and campaigning for a collective agreement. This was contrary to Rio’s long-term encouragement of workers to bargain direct with the company.

He received a satisfactory draft performance appraisal, but senior Rio management removed all positive comments from the draft and reduced its marks to a result that Justice Katzmann said was “virtually guaranteed to bring about the termination of Mr Lamberth’s employment”.

Subsequently, Mr Lamberth was not offered a contract extension.

Justice Katzmann recently found Mr Lamberth had been argumentative and sometimes confrontational at work but also found Rio’s decision not to extend the contract had breached the Act.
This was because the decision had been made for the ‘prohibited’ reason that Mr Lamberth had exercised his right to make complaints and inquiries about his job.

NO CONTRITION

Throughout the case Rio refused to show contrition.

“Far from cooperating with the prosecutor, it put the [CFMEU and Mr Lamberth] to strict proof on every matter (at first including, astonishingly, the CFMEU’s status as an industrial association within the meaning of the Act), and it denied engaging in adverse action when there was no evidentiary basis for doing so,” Justice Katzmann noted in the decision published today.

For a range of reasons, including the absence of contrition, Justice Katzmann concluded Rio was at a “substantial risk of re-offending”.

For the four breaches combined, Rio was ordered to pay the CFMEU $35,500.