An injured mine worker has lost her unfair dismissal claim after being sacked for refusing to take on a new role at the company because it wouldn’t allow her to care for her children.
The dismissal had a devastating impact on the single mother – she was forced to sell her house and car to support her family.
Despite the Fair Work Commission finding that she had lost her job through no fault of her own, it still ruled that the mine had a valid reason for dismissing her.
Elaina Tito worked as a truck driver at Rio Tinto’s Robe Valley Operations in Western Australia since September 2011.
Two years into the job, she injured her neck while operating machinery at the mine.
She recovered and returned to work, but three years later, she again hurt her neck which required surgery.
Ms Tito was not able to drive trucks, so Rio found an administrative role she could perform for the next few years, until 2018, when she was declared permanently unfit to drive trucks.
In May, Rio began a redeployment process to place Ms Tito in an alternative position within the business, but when one was found, she declined the offer, because the roster conflicted with her parental responsibilities.
As it turned out, Ms Tito’s ex-husband also worked at the mine on the same roster, which meant there would be no one available to care for their children.
Rio terminated her employment in August 2018.
In the Commission, Ms Tito argued that Rio did not adequately consider or make reasonable attempts to identify alternatives to dismissal, or medically retire her, or reflect upon the severity of the dismissal upon her or consider her ‘exemplary work performance and history’.
Rio submitted that on the balance of probabilities, Ms Tito was not fit to perform her substantive role and that this was something that she herself accepted.
The mine also argued that it had made genuine efforts to find her another role.
Ms Tito said her ex-husband had refused to change their custody arrangements which would have allowed her to work in the new role.
What the Commission found
While sympathetic to Ms Tito’s situation, deputy president Abbey Beaumont concluded that Rio had a valid reason for her dismissal and that the dismissal was not unjust, unreasonable, or harsh.
“Ms Tito is a single parent and, having lost her job, through no fault of her own, but because of her incapacity, she has had to sell her house and car to support her family,” deputy president Beaumont said.
“She faces job insecurity having only secured casual work, and her financial circumstances are difficult.
“There was never any issue raised regarding Ms Tito’s conduct, work ethic or performance of duties.
“Ms Tito was, by all accounts, a good employee and would still be working with Rio had she been able to work the roster of the position offered.
“There were legitimate reasons for the roster associated with the position, and it is entirely regrettable that Ms Tito’s personal circumstances did not lend themselves to availing herself of the job.
“However, this does not render her dismissal unfair.”
What the experts say
Leading industrial relations advocate Miles Heffernan from Industrial Relations Claims, said Ms Tito could have lodged a discrimination claim instead of an unfair dismissal claim.
“It is unlawful to discriminate against someone based on their family responsibilities, so if we had taken on this worker’s case, we would have explored the possibility of making a claim on that basis, instead of an unfair dismissal, which is determined only on whether the dismissal was unjust, unreasonable or harsh,” he said.
The Anti-Discrimination Act makes it unlawful to treat a worker less favourably than another worker because of their family responsibilities.
Family responsibilities include looking after a child, a partner, or a member of immediate family who needs care or support.
Mr Heffernan said Rio Tinto had gone to great lengths to accommodate Ms Tito.
“Not only did they find an alternative role for her when she was injured, but they also planned to redeploy her to a permanent new role within the company, which unfortunately, she could not accept,” he said.
“We don’t always come across an employer that makes that sort of an effort for an injured employee.”
If you have experienced discrimination based on family responsibilities or if you have been unfairly dismissed from employment, we can help.
Please call Industrial Relations Claims today on
1300 045 466