Employment & Safety – Tips and Trends: Edition 11

EMPLOYMENT

  • ‘Miner’ victory in redundancy dispute – Recently, the Full Bench of the FWC held that an employer is entitled to make employees redundant as part of a restructure to manage “unplanned delays” caused by protected industrial action. In CFMEU v Anglo Coal (Capcoal Management) Pty Ltd T/A Capcoal [2017] FWCFB 317, the Commission found that the decision was for “legitimate and valid operational reasons” after the industrial action caused a need to reduce labour requirements despite the fact that participants in the industrial action were selected for redundancy.
  • An MS Word of warning – The FWC has refused to extend time for an adverse action application lodged within the 21-day limit, but in the wrong format. In Davie v North Queensland Primary Health Network [2016] FWC 8979, an employee had submitted her documents within the time limit using Apple’s word processing software, Pages. The Commission requires documents to be in an approved format and informed the employee that they were unable to open the attachments and they were not taken to be filed. The employee ultimately converted the documents but lodged them one day late, claiming that she lived in a rural area with limited internet access. In refusing to grant the extension, the Commissioner determined that the one-day delay and the reasons for her late lodgement weighed in favour of an extension but concluded the merits of the employee’s claim were weak.
  • Settle, petal – In Applicant v Respondent [2017] FWC 52, the FWC has ordered an employee to pay costs for continuing to pursue his unfair dismissal claim after he rejected a $20,000 settlement offer. In October 2016, the Commission dismissed the cabin crew supervisor’s claim that his termination by an unidentified airline for alleged sexual harassment was unfair. In making the costs order, the Commission stated that it was made “reasonably apparent” to the supervisor by the airline when it made the settlement offer that his claim was unfounded and should have been abandoned in favour of the settlement offer. Employers should take comfort that the Commission may order costs in response to baseless applications from employees.

SAFETY

  • High standards for high risk workplaces – A stevedoring company has recently been convicted and fined $150,000 for safety breaches after a worker was crushed to death by a container of aluminium ingots. The company in question had generally good safety procedures and reviewed them regularly. It had even identified the risk that caused this accident and implemented controls to avoid it through its ordinary processes. It cooperated with authorities and was found by the court to be a good corporate citizen, pose a low risk of reoffending and to have shown contrition. Despite these mitigating factors, the company still received a hefty fine because it failed to make the use of portable ladders (provided for climbing down ingot stacks) mandatory. It also didn’t enforce certain prerequisites for entry into exclusion zones, which the company unsuccessfully argued are not standard industry practice. The lesson is that if you operate in a high-risk industry, substantial compliance will earn you some leniency, but you can never do too much to create a safe workplace if you want to avoid liability altogether.
  • Some things can’t be taught – A number of recent court decisions have emphasised that, while it is important to have safe systems of work, it is not possible or necessary for an employer to specifically train employees in every menial task or protect them from every conceivable risk. A service station worker recently tried to argue that they should have been trained on how to stack and move goods from a freezer if they became icy and difficult to remove. Another worker argued that they should have been trained in the use of a step ladder after they were injured from a fall. Courts rejected both these arguments and confirmed that common sense and self-responsibility still have a role to play in workplace safety.

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: 19 January 2017

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