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Leon
Leon, Solicitor
Category: Australia Law
Satisfied Customers: 42963
Experience:  BEc Dip Ed, Dip Law (SAB) MTax (UNSW)
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My question relates to NSW, Australia employment law. I am

Customer Question

My question relates to NSW, Australia employment law.
I am acting on behalf of my son and looking for the best way to advise him and the next steps he should take.
Background:
My son is 19 and joined a large supermarket chain in Sept. 2014 as part-time employee on a 20 hour contract. He has been involved in two armed robbery's, the 1st Robbery in late Dec 2014 and the 2nd robbery in Feb 2015.
After the 2nd robbery he suffered with anxiety and went onto work cover and has been receiving treatment from a work appointed counsellor, GP referred physiatrist and his GP.
As part of an agreed gradual return to work, his then area manager and the OHS representative for the supermarket agreed to the GP requests to move to a more local and quieter store, with a few working conditions, ensuring he was only working during daylight hours.
He was making good progress and his work cover note was adjusted to permit longer working hours and till work.
Unfortunately as part of the transition my son moved under the management of a different area manager responsible for the quieter store.
Whilst at the quieter store this manager had several meetings with my son and stated things like:
"6 weeks and your out of this store"
"I know what your game is and I can play that game too!"
After about 8 weeks with rehabilitation going well, the area manager then gave my son an ultimatum to move to one of two store. One store is in the busy CBD with a reputation for robberies and "incidents" and the other store in a more rural area but adding and additional 60k's round trip to his journey given that he is a part-time student and doing 4 x 4 hours shifts this would be a significant impact to his fuel expenses and study time, plus that store is also in an area that also has a bad reputation for the type of customers it has.
My son felt he had no choice but to agree to move to the CBD store, however his anxiety came back quite badly and after speaking with the GP and psychiatrist he started at the new store with some of his old restrictions placed back on his work cover note, the main restrictions being that he should not be expected to work after 6pm and should not work on the priority till during busy periods.
He joined the CBD store 4 weeks ago and has worked well, on-time, hard working etc.
In his first week the area manager met with him again and repeated he statement "I know what your game is and I can play that game too!", he also stated "he could get a GP to write anything on a workcover note, even saying that the GP would put down not fit for work due to a bad haircut", he also demanded that he attended the next medical appointments and made no reference to his recovery or settling in. As I have been escorting him to his appointments his latest appointment was at a time that was convenient for me to support my son and not the area manager.
Yesterday, he renewed his workcover note, both the GP and Psychiatrist offered to speak with the supermarkets OHS person if required.
Today, he took his workcover note into work and gave it to the area manager, who then decided to have a meeting with him once again inferring that he was lying about the workcover and that he would be moving to another store.
Specific Questions:
What should he do next? given that the only senior person he has contact with is the area manager? however he does have the email of the OHS person from the supermarket that originally reached out when supporting his recovery.
What should be done about his area manager as I feel these actions are bullying?
Does he have to permit his area manager to attend the appointment with the GP & Psychiatrist?
Are there any actions he must be doing, I have asked him to journal all his future meetings, are there any other actions he should take and when he records the meetings what information should he capture?
Whilst we understand that this may long term result in him finding a different employer, what should he do in the short term?
Can he complain to fairwork Australia?
Should we engage an employment lawyer directly to approach Aldi and address his boss's behavior towards him as this is certainly adding unnecessary stress and anxiety to him?
His psychiatrist has offered to contact the OHS person to discuss his case, should this be encouraged?
Submitted: 1 year ago.
Category: Australia Law
Expert:  kmslaw replied 1 year ago.

Hello my name is ***** ***** I am going to help you with your inquiry today. What does the GP and the psychiatrist diagnose him with. Is it general anxiety disorder or some other disability? If it is a known disability that he has, then he may be dealing with a situation of disability discrimination. He should be wary of any other employees who don't have a disability and how they are treated in the workplace, and record anything that differentiates them, treatment-wise. The employer is required to make reasonable adjustments to the workplace to enable him to keep working there. If they are not willing to do that, your son may have a valid complaint under the Disability Discrimination Act 1992 (Cth) and/or the Anti-Discrimination Act 1997 (NSW). Such a claim would be made to either the Australian Human Rights Commission or the Anti-Discrimination Board of NSW. You should seek a lawyer's opinion on which way to go, given his circumstances. In terms of Fair Work Australia, you would have to have his employment cease to do that, so he would have to resign and rely upon unfair dismissal provisions of the Fair Work Act. But it sounds like Aldi are willing to move him to another one of their stores, so perhaps that is the reasonable adjustment they are considering. It would be useful for the psychiatrist to be able to speak to the OHS person if the OHS person is open to working with him/her to make the correct adjustments to enable your son to work. I hope that has answered your questions today. Let me know if you need further information.

Customer: replied 1 year ago.
Thank you for your response, my son has been diagnosed with acute anxiety and PTSD, does that change anything?Whilst on face value it may seem that Aldi are being fare by offering to ove him to alternative stores, He was originally moved from the store that had the hold-ups, to a store in a nicer area and closer to home because after the trauma of the robberies he does not feel safe driving and walking across car parks. Whilst at this store he made excellent progress in his recovery and was also very well liked by the local manager and store team. However the area manager made it very clear he did not want him working their initially more than 6 weeks but this was extended by several weeks due to the store being short staffed. Three alternative store options were presented to him a new store in the middle of the CBD with a growing bad reputation for the aggressive customers and several reports of violent attacks in the shopping centre. A 2nd store longer standing with a well established reputation than the CBD store plus not near any easy bus transport. The third store being a significant drive away and actually almost 1.5 hours away if travelling by bus. It is disappointing that this area manager simply did not allow Ainsley to remain at the local store either indefinitely or certainly until he was fully recovered.Question, do you think it is realistic to talk with the OHS person at Aldi in confidence as I really do not want he to be put under further pressure by the area manager, given he is currently still in recovery?Question, his GP and Psychiatrist have both previously indicated that they would prefer him to take a few months off before returning to work, but he was eager to try and put things behind him. They have indicated that this is still be an option that would assist his recovery and especially given the added pressure by this manager from Aldi to change stores and now change agian, but what are his options under work cover and centrelink if the medical team consider him not fit for work? as he still has some financial obligations etc. Note after the 2nd robbery he was away from work on workcover for most of March and some of April returning to the local store in late April 2015.
Customer: replied 1 year ago.
Any chance you can respond to the continuation question above?
Expert:  kmslaw replied 1 year ago.

Has he made a WorkCover claim? If he has, he should follow the doctors' directions regarding whether he should be working. If not, my answer remains the same. Whether it is realistic to speak with the OHS person at Aldi is not something I can comment on. You simply ask for it and if they refuse, they refuse. Each manager will have a different mode of operation, sorry I can't advise on that. I hope that helps.

Customer: replied 1 year ago.
Sorry I thought I had adviced on this previously, yes after the 2nd robbery he could not immediately return to work so the GP have him a work cover certificate for about 8 weeks and he did not work for that 8 week period. During that time I believe that workcover was paying my son for his contracted shift hours.
My son then started a graduated return to work, Aldi agreed to transfer him to another store more local to home and also with a much better reputation.
The GP provided another work cover note, to limited hours and confining his hours to daytime only and not working on the checkout.
He was then making progress and had a workcover note to include additional hours, when the manager dropped the bomb shell he was moving him to a much busier store or a store that is 30k's further.
This stressed my son and after going back to the GP and Psychiatrist they put him back on a more restricted work cover certificate.
Throughout this as already stated his area manager has been less than supportive and actually the area manager in the last 24 hours has now taken it upon himself to contact my sons's GP directly to make an appointment and has insisted that my son attends the appointment even-though a) The appointment is outside my Sons employment hours b) My sons current work cover note is valid for a further 2 weeks c) Aldi has never been provided with a signed consent form permitting them to access any medical details about Ainsley.I have indicated that I would also like to be present but I would like some guidance on what this managers legal rights are when it comes to insisting that my son attends the appointment that the manager had set-up and the manager bieng present at the appointment (whilst my son would actually prefer him not to attend, I suspect in the interest of goodwill he needs to permit him to join but I wonder I can stipulate that my son can have his medical examination in private and then only the treatment plan can be discussed in the presence of the manager).
Expert:  kmslaw replied 1 year ago.

I'm sorry about the Workcover stuff I am a bit out of my depth. I will have to opt out so that someone with good experience can give you the best guidance. I hope I have served you well and answered something for you to date, so that it hasn't been a waste of time. Workers compensation is not something I do very regularly. I wish you all the best.

Customer: replied 1 year ago.
that disappointing, I am now concerned about the quality of your previous provided advice.
Expert:  Leon replied 1 year ago.

Good Afternoon.

My name is ***** ***** I am a NSW Solicitor. Thank you for your question, and will do my best to assist you with your question. Please understand this is not legal advise Please understand this is not legal advise but a guide to assist you.

I have responded to your duplicate question.

Is there anything else I can assist with?