Employment & Safety – Tips and Trends: Edition 18

EMPLOYMENT

  • Stop in the name of bullying – A recent decision in the anti-bullying jurisdiction has highlighted the interaction between bullying complaints and an employer’s internal disciplinary processes. In Lynette Bayly [2017] FWC 1886, an employee made a “stop bullying” application alleging that she had been subject to bullying at work while her employer was investigating her conduct. Despite the application, the employer continued its investigation, issued draft findings and stood the employee down to provide a response to any disciplinary outcome. In response, the employee sought and was issued an interim order preventing her employer from continuing with the investigation or taking any disciplinary action against her until the determination of her bullying claim. Employers should be aware of this development and seek advice promptly to deal with employees who opt to use this strategy to preserve their positions.
  • E-fail: Abusive rant justifies dismissal – In Sologinkin v Cosmetic Suppliers Pty Ltd T/A Coty [2017] FWC 1838, a State Sales Manager was dismissed after she sent an “intemperate and inappropriate” email to the Customer Services Team in which she described them as “totally incompetent”. On the same day, the manager accidentally sent an email to a client in which she made a number of disparaging comments around the clients’ ethnicity and national origin. Despite the manager having an unblemished record, the employer dismissed her. In dismissing her unfair dismissal claim, the FWC found that the gravity of the misconduct, coming from someone whose role was to “manage relations with key customers” was such that the dismissal was not harsh. This decision affirms that the trust and confidence in an employment relationship can be destroyed by one act of sufficient gravity.

SAFETY

  • Refusal to grant access was poor form – In CFMEU v Class 1 Form Pty Ltd [2017] FCCA 696 an employer was fined after one of its managers refused site access to a union official who attempted to exercise a WHS right of entry. The CFMEU official wanted to speak to a worker in order to investigate reports that the company only had one crane ‘dogger’ on duty, thereby creating a potential risk to health and safety. The judge noted that the notice of entry relied upon by the union was not properly particularised, but he was still satisfied that the official had formed a reasonable suspicion that there was a WHS contravention occurring. The penalty imposed was reduced due to the lack of particularity in the unions entry notice. This case shows that employers should take WHS-related right of entry requests seriously and that a court may uphold entry rights even where they are invoked in circumstances involving technical or procedural shortcomings. The focus of a court will be on whether a permit holder has a “reasonable suspicion” that a contravention is occurring. The suspicion must have some objective foundation (it must be reasonable), but ultimately the right to enter depends upon the permit holders subjective state of mind. On that basis, you should think carefully before refusing entry, err on the side of caution and consider taking urgent advice.
  • Enforceable undertaking update: crushing the numbers – Two employers have entered massive enforceable undertakings with SafeWork NSW following separate crushing incidents. The first employer spent $245,000 on safety rectifications and pledged a further $394,000 to go towards future safety initiatives after a worker was crushed by a machine without proper guarding installed. Meanwhile, the second employer has committed a total of $224,190 towards their undertaking, including $79,000 in rectifications. The second incident was also partly caused by inadequate guarding. Enforceable undertakings continue to be well utilised by regulators nation-wide and while they do provide safety benefits to businesses they can be very expensive and tend to involve doing more than would be necessary to achieve satisfactory WHS compliance.
  • Straight fire: employer receives record fine for chemical explosion – Cleanaway Operations Pty Ltd has received the largest WHS fine ever for a Comcare initiated prosecution following a plea of guilty to charges under the WHS legislation. The company was carrying out a trial distillation of a new chemical solvent when a large flame burst out of the metal still and knocked a nearby employer to the ground. Luckily, the employee received only minor injuries. The total fine was $650,000, but the judge indicated that she would have imposed a fine of $850,000 in the absence of the guilty plea. This is yet further evidence of the undeniable trend towards ever-higher fines for WHS infractions.

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: 27 April 2017

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