Employment & Safety – Tips and Trends: Edition 13

EMPLOYMENT

  • Policing adverse action risks – The Federal Court has reiterated the importance of ensuring recruitment is centred on the inherent requirements of the position rather than a discriminatory basis. In Shizas v Commissioner of Police [2017] FCA 61, the Australian Federal Police (AFP) refused to employ a candidate because of his arthritis. When the candidate questioned the refusal, the AFP undertook a review, sought independent medical advice and ultimately did not reverse their decision. The Court found that the AFP took adverse action by initially refusing to employ the candidate, but its refusal to reverse the decision after a review was lawful because it was based on the inherent requirements of the position.
  • Employee ‘schooled’ on workplace rights – The NSW Industrial Relations Commission recently held that an employer was within its rights to terminate a longstanding flexible working arrangement that enabled two employees to alter their work hours so that they could collect their children from school each afternoon. In CFMEU v South Western Sydney Local Health District [2016] NSWIRComm 1047, the Commission found that aligning the hours of the employees to others within the department did not amount to an industrial injustice because it was done to improve operational efficiency. Take comfort that you can bring flexible working arrangements to an end where they are adversely affecting operational requirements in some circumstances.
  • A deal with the devil: decade long restraint upheld (on an interlocutory basis) – An engineer with highly specialised skills has temporarily been barred from working with any competitors in Western Australia after the WA Supreme Court determined that a 10-year restraint clause was reasonable, at least until the Court had the benefit of having a full hearing into the matter. In Devil Dog Pty Ltd v Cook [2017] WASC 27, the engineer, who was also a company director, resigned from his position and started working with a competing business operated by another former employee within a month. In upholding the lengthy restraint period, the Court took into account the highly competitive nature of the industry, the strength of the engineer’s connection with the employer’s clientele given that he had run the business for more than five years.  Stay tuned for an update after the full hearing.  We suspect that 10 years will be held to be too long.

SAFETY

  • Wrist and reward – An employee has successfully argued for an increase in the compensation to be paid because of a wrist injury she sustained at work. The injury was caused by her employer’s breach of WHS standards. The employee was a fruit packer and a sticky conveyor belt, which was not subjected to a regular cleaning regime, required her to use significant force to move a box she was packing. The damages ordered on appeal were $581,557. This case goes to show that even relatively minor OHS breaches can have major consequences for employees and employers alike.
  • The hefty cost of a nasty boss – The Victorian Supreme Court held that an employer failed to provide a safe work environment for a youth justice case manager, when it left her under the supervision of an ‘intemperate’ manager. The employee in this case had a pre-existing psychiatric condition of which her employer was aware. Despite knowing that the employee’s condition was deteriorating and that conflict with her supervisor was a primary source of this, the employer did not take any of the remedial steps found by the court to be reasonable, such as moving her to a different supervisor or finding a suitable alternative position. The damages awarded totalled $625,345. This case is a reminder that a proactive approach is vital when dealing with known mental issues.
  • Training and procedure: a success story – An employer in Western Australia has avoided liability for the injury of an experienced worker. The worker negligently used an unsafe method to lower a loading platform more than 300 times in 18 months. This eventually caused him to fall onto a concrete floor. The court held that because the employer had provided appropriate training and direction, they were entitled to assume that the worker would not ignore this training and use an unsafe work method. The employer also required their workers to fill in a daily worksheet which prompted them to report any safety issues. The worker did not report the issue that caused his injury. This case is an example of how properly implemented training and procedures can protect you in the event of workplace accidents.

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: 17 February 2017

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