Employment & Safety – Tips and Trends: Edition 10

EMPLOYMENT

  • Human rights and criminal wrongs – Employers need to be aware that taking an employee’s criminal record into account is only permitted where it is relevant to the inherent requirements of the job. In AW v Data#3 [2016] AusHRC 105, an IT specialist was dismissed after the company discovered that he had a criminal record relating to drugs. The Australian Human Rights Commission (AHRC) found that the employer discriminated against the specialist when it terminated his employment as there was not a sufficiently close connection between his criminal record and the inherent requirements of the role. Employers should be wary of the potential for serious reputational damage and time-consuming legal processes and take the time now to ensure that your position descriptions are up to date – in particular, setting out the inherent requirements of the position.
  • Stressing about invalid resignations – The FWC has recently highlighted that employers need to be careful not to assume an employee has resigned where it is not clear. In Mr A v the Respondent [2016] FWC 8631, an employee gathered some of his belongings and left work abruptly while suffering a panic attack, following a disagreement with his employer. In finding that the employee was unfairly dismissed, the FWC found that the worker’s distressed state when he left work gave the owner “legitimate cause for doubt” about the worker’s intention to resign. If you are uncertain whether an employees’ resignation is valid, you should allow a ‘cooling off period’, seek clarification in writing and/or seek legal advice before taking any action.
  • Phe-nominal payout – The Federal Court has sent a clear message to employees to keep claims for damages reasonable in Romero v Farstad Shipping (Indian Pacific) Pty Ltd (No 3) [2016] FCA 1453. In 2011, a ship officer emailed her employer to complain about bullying behaviour from the captain on a 12-day voyage. This ultimately led to a determination from the Full Bench of the Federal Court that the employer’s failure to comply with its own policies during a bullying investigation amounted to a breach of contract. The officer claimed $115,759.71 in damages. The Court rejected the damages amount sought and awarded a nominal amount of $100, holding that that the financial loss of the employee was not a probable consequence of the breaches.

SAFETY

  • Forklift your safety game – An employer has been prosecuted for breaching section 32 of the Harmonised WHS legislation after a worker was injured in a forklift accident. The employer had a safe work method statement which was displayed in the lunch room, but the content was not actively disseminated by the employer. The workers involved in the incident had not been trained to use the safe work method. Crucially, the method statement itself was ambiguous in that it provided for a pedestrian exclusion zone of “up to 5 meters”, rather than at least five metres, which was presumably intended. Employers must ensure that their policies and procedures are clear and that compliance is actively trained, promoted and enforced.
  • Record fine: low toll-erance approach – Toll was hit with a $1 million dollar fine for a breach of Victoria’s WHS legislation. The incident resulted in the death of a worker involved in stevedoring operations. Toll was found not to have enforced its own safety procedure that required a “spotter” during loading and unloading operations to watch for pedestrians and minimise hazards caused by heavy plant used in unloading. This is the highest ever fine for a single offence in Victoria and very close the Australian record. This case demonstrates that the maximum penalties imposed by legislation are not just an idle threat.
  • Safety Standards Summary – Safe Work Australia has released a guide which explains the relationship between Australian Standards and WHS legislation. The guide includes an appendix that summarises all direct references to AS in the WHS regulations. The guide is available online click here.   The general message remains the same: where there are standards – whether they be documented or just well-known/ accepted industry standards – employers will need ‘almost extraordinary’ reasons for not at least meeting them to avoid prosecution.

If you have any queries or would like further information regarding this edition, please contact:

David Dilger
Partner
M: 0428 238 819
E: ddilger@pageseager.com.au

Rod Collinson
Partner
M: 0430 221 067
E: rcollinson@pageseager.com.au

Luke Gattuso
Partner
M: 0411 989 292
E: lgattuso@pageseager.com.au

Published: 5 January 2017

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