Employment & Safety – Tips and Trends: Edition 17

EMPLOYMENT

  • Immature post = premature dismissal – A recent decision provides a warning to employers in determining whether inappropriate behaviour will justify a valid reason for termination. In Somogyi v LED Technologies Pty Ltd [2017] FWC 1966, a travelling salesperson argued that he was unfairly dismissed following a Facebook post that suggested a woman had provided sexual favours to her boss to win a promotion. Although the post was described as “crude” and “immature”, the Commission determined that the post was not directed at the employer, its employees or customers. Ultimately, the dismissal was held to be unfair and the employee was awarded $6,000 in compensation.
  • Employee gets burnt for lack of judgment – In Baird v Airservices Australia [2017] FWC 1946, the dismissal of a firefighter was upheld after he uploaded an inappropriate video to YouTube. The footage showed the firefighter pretending to play music on a music-composing electronic device while operating the control centre at Melbourne’s Tullamarine Airport while a fire alarm was sounding. The Commission rejected the employee’s argument that the footage was less serious because it only reached a small audience, finding that the “video was able to be seen by the world” and had the potential to damage the reputation of the employer. In these circumstances, the video constituted misconduct capable of justifying dismissal.
  • Strong response to unlawful industrial action – The Federal Court has imposed almost $600,000 in fines on the CFMEU and 10 officials for organising two days of industrial action at construction sites three years ago. In Australian Building and Construction Commission v Construction, Forestry, Mining and Energy Union (The Kane Constructions Case) (No 2) [2017] FCA 368, the CFMEU disrupted work at nine construction sites in Melbourne and Geelong “without apology and or the slightest sense of obligation to IR laws”. In handing down the hefty fines, Judge Jessup commented that courts should take a strong response to industrial action which contravenes the provisions of the Fair Work Act.

SAFETY

  • Work stoppage not justified under WHS laws – In two separate cases –  union officials were fined a total of $101,500 for engaging in unlawful industrial action. The officials tried to claim that deficiencies in first aid arrangements warranted the immediate stoppage of work. However, the Federal Court ruled that there was no immediate threat to health and safety and the provisions of Victoria’s state WHS laws also did not apply. Generally speaking, WHS laws will only allow workers to cease work entirely if there is an immediate risk to health and safety. The court in this case found that the fact that workers returned to work before ceasing again strongly supported the conclusion that there was no immediate risk. Under the model WHS legislation, health and safety representatives in a workplace can direct a stoppage of work, or workers can stop work at their own initiative, so it is important for employers to be clear about the scope of those rights.
  • New investment in mental health and wellbeing – The Victorian government has just launched a $50 million initiative which will provide employers with resources to promote mental health and well-being in the workplace.  The initiative centres upon a free online interactive platform that provides access to advice, the latest research and support for employers. WorkSafe Victoria will manage the scheme which is part of an expansion of the state’s existing WorkHealth programme. We’ve said it before and we’ll say it again: mental health and wellbeing is an increasingly key component of WHS both from a practical and a legal perspective. This development shows that the focus on this area is only continuing to increase.

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: 13 April 2017

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