Employment & Safety – Tips and Trends: Edition 22

EMPLOYMENT

  • The reach of the unfair dismissal jurisdiction – The recent decision in Kaufman v Jones Lang LaSalle (Vic) Pty Ltd T/A JLL [2017] FWC 2623 serves as a reminder to employers that even high earning employees may potentially have access to the unfair dismissal jurisdiction. There is a common misconception that employees who earn above the ‘high income threshold’ (currently $138,900, but this figure will be re-indexed at the start of the new financial year) cannot make a claim for unfair dismissal. In fact, any employee who earns less than the threshold amount OR is covered by any Modern Award OR is covered by an enterprise agreement, can make a claim. Mr Kaufman was a high earning regional director, but his essential duties were within the scope of the Real Estate Award 2010 so he was permitted to dispute the genuineness of his redundancy under the unfair dismissal provisions of the Fair Work Act. Employers should be wary of acting rashly on an assumption that higher earners will have less recourse under the Act.
  • Unsuccessful appeal weighs heavily on TNT –  A Full Bench of the FWC has (by a 2-1 majority) reaffirmed a first-instance decision concerning the much-discussed topic of how to properly determine the ‘inherent requirements’ of a position. In TNT Australia Pty Ltd T/A TNT v Stephen Martin [2017] FWCFB 1510 a delivery driver injured his knee and then sought to return to work after surgery, but TNT determined that he was still unable to meet the inherent requirements of the position because of his inability to perform heavy lifting. The employee successfully argued that all employees were entitled to decline to lift heavy objects in accordance with a safety-first manual handling procedure, and that it was feasible to make use of lifting equipment such as trolleys. In his dissenting opinion, Vice President Catanzariti, remarked that it was unrealistic to suppose that appropriate tools and conditions would always be available to assist with heavy lifting and that the need to sometimes (if only occasionally) lift heavy items was an inherent part of being a bulk delivery driver. The minority dissent in this case highlights how difficult it can be determining what are the truly inherent requirements of any given position and that this task must always be approached with great care, rather than treated as obvious or unquestionable.

SAFETY

  • Scope for change: employer steels victory in safety dispute – A recently reported case has shed some light on the FWC’s approach to dispute resolution in the context of safety-related disagreements. In CFMEU v BlueScope Steel (AIS) Pty Ltd T/A BlueScope Steel [2017] FWC 2851, the Commission was asked to resolve a dispute under BlueScope’s enterprise agreement concerning a proposal to reduce the number of people allocated to perform specific workplace tasks. The CFMEU argued that a reduction in numbers would require workers to “cut corners on safety”, and would contravene a requirement under the enterprise agreement that the introduction of any significant change must be safe. Commissioner McKenna held that the likely but marginal reduction in safety caused by the change was not enough to show that safety considerations had not been given due weight, and that the CFMEU bore the onus of affirmatively proving that BlueScope had not complied with the agreement. This decision turns upon the terms of the BlueScope agreement, but it does demonstrate that, even where safety is concerned, managerial prerogative cannot be ousted or undermined through a dispute resolution clause without showing some concrete departure from an agreement.
  • Un-Safeway not good enough for Woolworths – In Mistry v Woolworths Limited T/A Woolworths Fuel [2017] FWC 3097, the FWC sanctioned the dismissal of an employee whose misguided heroics during an attempted robbery put himself and other employees in danger. The worker refused to hand over cigarettes and money to the unarmed would-be robber and instead claimed that he didn’t have access to the register or cigarettes. Employees at the store are reminded every two months that company policy is to comply with any demands, press a panic button and lock the doors. Woolworths also administers a questionnaire on the policy to confirm understanding. The shop attendant further breached policy by failing to promptly notify his supervisor (serving other customers first instead) and he didn’t call the police until being reminded twice to do so. The employee’s failure to appreciate the seriousness of the breaches or show any contrition was also relevant to the FWC’s determination. This decision reinforces the seriousness with which breaches of safety policy are treated by the FWC in unfair dismissals, and demonstrates the reliance which may fairly be placed on simple and practical methods which can verify that employees are properly informed of their obligations.

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

Barney Adams
Lawyer
T: (03) 6235 5917
E: badams@pageseager.com.au

Nicola Dobson
Lawyer
T: (03) 6235 5193
E: ndobson@pageseager.com.au

Published: 22 June 2017

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