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Onus on radio station to prove Royal prank call DJ was provided with “safe workplace”

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By Steven Raeburn, N/A

July 16, 2013 | 4 min read

Southern Cross Austereo, operators of the radio station which prank called the London hospital where Kate Middleton was being treated, was obliged to provide a safe workplace for DJ Mel Greig, and it is up to the station to prove that it did so, according to a specialist Sydney lawyer.

Mel Greig is pursuing legal action against her employers

Nicole Dunn, senior associate at Carroll O'Dea, in Sydney, said that everyone has a right to a safe workplace under Australian law, and Mel Greig’s action raising a General Protections claim for being placed in an alleged unsafe workplace, obliges the station to prove that it did not.

“All workers are entitled to a safe workplace,” she told The Drum.

“In New South Wales, the Work Health and Safety Act 2011 requires a person conducting a business or undertaking to ensure, as far as reasonably practicable, the health and safety of workers engaged to carryout activities for the business or undertaking.”

She said that the act sets out various prohibitions designed to protect employees and employers, and adds that under the act an employer is prohibited against taking adverse action against an employee because the employee has a workplace right. She says the act of placing Greig in the position of making the prank call, which was followed by the suicide of the nurse who took the call, Jacintha Saldanha, may have placed Greig in a position of compensable harm.

“Adverse action by an employer against an employee broadly includes doing or threatening any of the following: dismissing the employee, injuring the employee in his/her employment, altering the employee’s position to his/her prejudice or discriminating between him/her and other employees,” she said.

“An injury is when a person suffers compensable harm. Altering the position of a person to their prejudice encompasses not only legal injury but any adverse affect or deterioration in benefits or entitlements the person received before the conduct in question.

“Once an employee has established they have suffered adverse action and have alleged the action is within the scope for a prescribed ground, it is presumed that the employer’s action was taken for that reason unless the employer proves otherwise.

“If a contravention of the general protections provision contained in the Act is found, a civil penalty may be payable. The current maximum penalty for a contravention of the general protections provisions is $51,000 per contravention for a corporation and $10,200 per contravention for an individual.

“Although not privy to specific details of the claim, it seems the basis for Ms Greig’s Fair Work Commission application is an allegation that she suffered adverse action by Southern Cross Austereo because of the requirement for it to provide her with a safe workplace, which she alleges it has not done.

“It is now up to Southern Cross Austereo to prove otherwise.”

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