Employment & Safety – Tips and Trends: Edition 20

EMPLOYMENT

  • The path to bargaining hell is paved with good intentions – The recent changes to the NERR have led to an increase in pre-bargaining missteps (from 18% to 31%) according to a submission made by FWC to a recent Senate Inquiry, as we predicted (see related article). The changes to the form of the NERR will soon be accompanied by further changes that allow the FWC to overlook minor technical deficiencies. However, that second measure requires parliamentary approval and has not yet been implemented. The FWC has put all approval applications made after 3 April (the date when the NERR changed) on hold and is asking the government to backdate the power to overlook technicalities to deal with the spike in errors.  In the interim please make sure that you take steps to check and re-check your NERRs.  Any failures (regardless of intentions) can ‘ruin’ all of your hard work and prevent approval of your EA.
  • Jet your story straight – In Qantas Airways Limited v Dawson [2017] FWCFB 1712, a FWC Full Bench has confirmed that an employee’s deliberate dishonesty during a workplace investigation is a highly relevant consideration when determining whether dismissal is an appropriate outcome. In this case, a flight attendant stole various alcoholic beverages from a plane while on duty. He subsequently provided dishonest explanations for why the alcohol was found in his possession. Deliberate dishonesty during an investigation seriously compounds any pre-existing misconduct because it degrades the trust and confidence which is central to an employment relationship. The evidence or reasons in support of any suspected dishonesty during the investigation/disciplinary process should be documented and put to an employee for their response as part of an effective investigation.  Similarly, some ‘credit’ should also be considered where an employee openly assists with such processes, so that their conduct can be used as a comparator for cases where it isn’t.
  • FWC: workers need “more care than machines” – In a recent decision, the FWC has strongly criticised a dismissal implemented by a relatively large company with a dedicated HR department. In Finnegan v Komatsu Forklift Australia Pty Ltd [2017] FWC 2433, the FWC held that the employer did not have a valid reason for dismissing an employee who was certified incapacitated for work due to mental health issues. The Commission was particularly scathing of the fact that the dismissal was carried out via email – an approach which would be insensitive even directed towards an employee without mental health issues – and didn’t provide an opportunity for the employee to show cause. This case is a reminder for employers to ensure that dismissals are carried out in a way that is reasonably sensitive and not just ‘procedurally’ fair.  The way businesses carry out their disciplinary processes is now more than ever under the watchful eye of an increasingly more intrusive FWC.  If your ‘disciplinary dirty laundry’ was aired would you be proud or embarrassed?  Isn’t it time to start having more conversations taking the unacceptable ‘out of play’ at the earliest possible opportunity rather than relying on ‘termination or bust’ outcomes?

SAFETY

  • Supreme Court not amused by safety breach – An engineering company and its officer, among the first to be charged with a category 1 offence under the model WHS laws, have failed to convince the Supreme Court of South Australia that provisions creating the offence should be ‘read down’ to limit their application. The company certified an amusement ride as safe for use, before an 8-year old girl was thrown from the ride and killed 12 days later at the Royal Adelaide Show. The court confirmed that the “duties created by the Act are onerous” and rejected the argument that this could not have been parliament’s intention. This is a reminder of the broad scope of a PCBU’s WHS obligations – they extend to reasonably ensuring the safety of non-workers in any place where work is performed.  Are your officers really aware of their due diligence obligations?  And if they are, is it now time that they had a refresher?  The game just changed again.
  • Queensland government no longer sitting on the offence – The Queensland government has now confirmed that they will introduce a new WHS criminal offence of “negligence causing death”. This offence will almost certainly carry even more stringent maximum penalties than the 5 years jail and $600,000 fine (for individuals) which are possible for a ‘category 1’ offence under the model WHS legislation. This imminent legislative development is partly a political reaction to local events such as the Dreamworld tragedy, but it is also another indication of the national trend towards higher penalties for WHS laxity. It is entirely possible that offences of this nature may be introduced in other states or incorporated into the model laws further down the track. Keep an eye out for further news.

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: 26 May 2017

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