Employment & Safety – Tips and Trends: Edition 23

EMPLOYMENT

  • Have a Hart, I knead the dough! – A casual delivery driver working for a pizza franchisee has failed in her attempt to dispute the result of an incentive competition run by her employer’s franchisor company. In Hart v Dominos Pizza Enterprise Ltd t/a Dominos Pizza [2017] FWC 3268, the aggrieved worker attempted to argue that the $15,000 prize for the company’s most efficient driver should have been awarded to her, in part because Dominos had not complied with the grievance resolution procedure contained in the pizza chain’s EA. The FWC dismissed the “bizarre” application, noting that this was not a dispute under the NES and the EA did not encompass the incentive program, which was conducted at the absolute discretion of Dominos. Although the applicant was unsuccessful in this case, dispute resolution clauses in enterprise agreements often contain more general ‘catch all’ clauses, which will capture anything ‘related to the employment relationship’, including disputes like this. If you are bargaining for a new agreement, think carefully about how broadly you draft your dispute resolution clause.
  • Maths teacher’s delay complaint doesn’t add up – A worker has failed to convince the Western Australian Supreme Court of Appeal that his employer breached their duty of care by delaying a grievance resolution process in Christos v Curtin University of Technology [2017] WASCA 110. The mathematics lecturer made an unsuccessful claim for workers compensation related to stress and anxiety and made several complaints against the university and its staff. The lecturer then went on sick leave which contributed to a delay in the resolution of his grievances. The university considered that a continuation of the investigation and resolution process could aggravate the worker’s condition. The Court agreed that holding off was in the employee’s best interest and found that he contributed to delays himself when he ‘blew hot and cold’ about participating in the process. This case is a reminder that sensitivities caused by mental health must be taken seriously and employees can’t have it both ways. Employers should generally prioritise caution and employee wellbeing over expediency. However, if you are going take (or not take) action out of concern for wellbeing, make sure you base your decisions on the best available evidence and document the reasons for what you do.
  • Fair Work Information Statement reminder – Don’t forget that all employees including casuals and specified term or task employees, must be provided with a copy of the Fair Work Information Statement. The statement has just been updated and the latest version can be downloaded here. Failure to provide a Fair Work Statement is a breach of the National Employment Standards and can result in hefty fines.

SAFETY

  • Expensive slip-up – In Wallace v RSL Care Limited [2017] QDC 161, an employer has been ordered to pay more than $500,000 in compensation to an employee who slipped and fell in the workplace. The residential carer was washing a patient and slipped while getting up from a crouching position, subsequently developing deep vein thrombosis because of the fall. In holding the employer responsible the court specifically pointed out that a simple safety audit would have revealed the risk and allowed for preventative action, in this case the installation of slip resistant material (a very inexpensive measure). Not every single workplace risk can be pre-identified and eliminated but WHS duty holders have a duty to take reasonable steps to promote safety and a general and/or targeted (i.e. risk-specific) audit goes a long way to discharging that duty.  When is the last time you have done a safety audit or even a peer safety review in your workplace?
  • What’s in a middle name? – The Federal Circuit Court has emphasised the strict formal requirements that apply in relation to right of entry permits and notices in Ramsay & Anor v Menso & Anor [2017] FCCA 1416. Judge Vasta ruled that an entry notice was invalid because the parties giving notice omitted their middle names from the document. However, the judgment also strongly condemned the actions of a director of the construction company to whom notice was given for behaving in an “appalling manner”. The director behaved in a disrespectful and inappropriate manner, not just towards the union officials seeking entry, but also the Workplace Health and Safety Queensland and Police officers who attended the site. Additionally, her reason for refusing entry (less than 48 hours’ notice) was not actually the reason that the notices were invalid. The judge remarked that if the notice had been valid he would have fined the director $18,500 for her behaviour. This case serves as a reminder that right of entry disputes can easily become heated and that employers need to exercise caution in enforcing their rights by avoiding behaviours which could inadvertently breach the unions’ corresponding rights that concurrently exist.
  • Reporting for duty – An employer company has been fined $25,000 for its failure to report a notifiable incident to the workplace safety regulator in Queensland. The incident involved an employee who sustained a compound skull fracture and a traumatic brain injury. In determining the appropriate fine, the Toowoomba Magistrate’s Court took account of the fact that the employer knew of its reporting duty under section 38 of the Model WHS Laws. The injured worker in question was the stepson of the company’s managing directors, which may explain why the incident was not reported. Workplace Health and Safety Queensland did not find out about the incident until 17 months after it occurred. This case serves as a reminder that reporting of notifiable incidents is never optional and the obligation doesn’t disappear once other response action has been taken.  Do your employees know what their obligations are?  What do your systems say about this issue?  Simply restating the legislation is unlikely to be ‘enough’. What practical examples can you provide your employees?

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: 6 July 2017

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