Fired After Speaking Up? This Case Shows Why Safety Complaints Can Be Protected Under the Law
Some workers believe raising safety issues will get them in trouble. But what happens if speaking up gets you fired?
In the case Flavel v Railpro Services Pty Ltd, the Court examined whether an employee was unlawfully dismissed under the general protections provisions of the Fair Work Act 2009. The answer hinged on one key question: was the employee exercising a workplace right when they refused unsafe work?
Mr Flavel was a train driver. After a serious personal incident, he was mentally unwell and expressed concerns about his ability to safely carry out duties. His employer directed him to undertake a competency test. He refused.
The employer claimed the dismissal was due to failure to comply with the test and not meeting the role’s requirements. But the Court saw it differently.
What Is a “General Protections” Breach?
Under the Fair Work Act, it’s unlawful for an employer to take “adverse action” (such as dismissal) against an employee because they have exercised a workplace right. This includes the right to:
Raise safety concerns
Refuse unsafe work
Lodge complaints or inquiries
If a worker is dismissed for these reasons, it may breach section 340 of the Fair Work Act.
Importantly, under section 361, the employer must prove the dismissal wasn’t for a prohibited reason. This “reverse onus” is one of the strongest employee protections in Australian workplace law.
The Decision
The Court found that Mr Flavel’s refusal to undergo the test was not misconduct. Instead, it was a reasonable step to protect his own safety and that of others.
In other words, he was exercising a workplace right. That made his dismissal unlawful.
The Court also found that his mental health condition was an additional unlawful reason for the dismissal, breaching anti-discrimination protections.
Key Takeaways for Employees
Speaking up about safety is not misconduct. It is a protected right under the Fair Work Act.
If you are dismissed because you raised safety issues, refused unsafe work, or exercised a legal entitlement, your employer must prove otherwise.
These protections apply regardless of how long you’ve worked there, or your employment status.
You may be able to pursue general protections even if you don’t qualify for unfair dismissal laws.
General protections cases aren’t about proving that a dismissal was “unfair.” They’re about stopping employers from punishing workers for asserting their rights—particularly around safety.
If you think you were fired for making a complaint, asking a question, or asserting your rights, it’s worth exploring whether general protections laws apply.
