An injured mine worker has lost her job for refusing to take on a new role that wouldn’t allow her to care for her children.
The single mother filed an unsuccessful unfair dismissal claim, explaining that she had to sell her home and car to support her family.
The Fair Work Commission found that she had lost her job through no fault of her own.
However, it ultimately concluded 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.
Tito could no longer drive trucks, so Rio subsequently found her a temporary administrative role.
In May, after medical experts declared her permanently unfit to drive trucks, Rio found her a new permanent position.
However, Tito declined the offer because the roster conflicted with her parental responsibilities.
Tito’s ex-husband also worked at the mine on the same roster, which meant no one would be available to care for their children.
Rio therefore terminated her employment in August 2018.
In the Commission, Tito argued that Rio failed to make reasonable attempts to identify alternatives to dismissal or medically retire her.
She also claimed the company failed to consider the severity of the dismissal on her and failed to consider her ‘exemplary work performance and history’.
However, Rio argued Tito had been declared unfit to perform her substantive role.
The mine also argued it made genuine efforts to find her another role.
What the Commission found
While sympathetic to Tito’s situation, deputy president Abbey Beaumont found Rio had a valid reason for dismissal.
“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
Industrial advocate Miles Heffernan from IR Claims says the mine might have discriminated against Ms Tito.
“It is unlawful to discriminate against someone based on their family responsibilities,” he said.
“Therefore, she may have had a discrimination claim, however, it does seem that the employer made every attempt to find her another role within the company.”
Discrimination laws make 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.
Please call our team at Industrial Relations Claims today on