Employment & Safety – Tips and Trends: Edition 25

EMPLOYMENT

  • An investigation fit for a King – In King v Concept Wire Industries [2017] FWC 3867, an employee was dismissed for pressuring a co-worker to join a union. Commissioner Wilson agreed with the findings made by an external investigator that the employee’s repeated threats and heavy-handed attempts at persuasion amounted to bullying conduct. The employee claimed that Concept Wire was engaging in “union bashing”, but the Commissioner was impressed by the “balanced and meticulous” investigation upon which the dismissal was based. The bullying incidents themselves did not occur in the presence of witnesses, but a thorough examination of character evidence about the complainant, inconsistencies in the dismissed employee’s version of events and the relative lack of detail he gave compared with the complainant, led the investigator to conclude on the balance of probabilities that the relevant conduct had occurred. This case is a good example of how a thorough and comprehensive workplace investigation may justify a decision to terminate for misconduct, even where there is a lack of corroborative evidence. It also demonstrates that the right not to join a union is just as important as the right to join.
  • FWC puts brakes on express dismissal – A recent decision from the FWC has overturned the dismissal of a delivery depot manager who was fired for alleged bullying of several co-workers. In Biffin v XL Express [2017] FWC 3702, the employer relied on information from Work Health Safety Queensland that was gathered in the course of a separate investigation into the death of an XL Express employee. No report was provided to the employer and the details of the investigation were kept secret because of an ongoing coronial inquest. The employer didn’t conduct its own investigation and instead proceeded to immediately dismiss the employee without knowing who he had allegedly bullied, when and how. Deputy President Ashbury emphasised that employers are required to reasonably satisfy themselves of the truth of allegations relied upon for dismissal and must have sufficient particulars to provide an employee with a fair opportunity to respond.

SAFETY

  • Employer tries to bale on safety responsibilities –  An employer was recently ordered to pay fines and costs totalling nearly $200,000 for breaches of the Victorian OHS Act after a worker’s arm was severed by an aluminium baling machine. The employer argued that it had discharged its duties by making pre-purchase enquiries to confirm that the manufacturer of the machines was suitably certified and provided appropriate assurances. However, the Court rejected these arguments and upheld charges in relation to the aluminium baling machine involved in the accident ($75,000), a steel baling machine that posed similar risks ($25,000) and the employer’s more general failure to implement a safe system for working with the machines ($50,000). Duty holders must be aware that it is not acceptable to rely upon others to discharge safety obligations and that liability can result from reasonably avoidable risks, even if they haven’t caused actual harm (such as the steel baler in this case).
  • Shutterbug gets shut down in the Commission – In Rayner v Little Moreton Pty Ltd T/A H-R Products [2017] FWC 1652, the FWC upheld the sacking of an employee who refused to comply with a direction to refrain from taking photographs of an alleged safety hazard and then became involved in a related physical altercation with a co-worker. The employer had received complaints from other employees who did not want to be photographed, and directed the employee to cease the behaviour. This was consistent with its established procedures which did not require the worker to obtain photographic evidence to report a hazard. Deputy President Binet found that the employer’s direction was reasonable and lawful, observing that the procedure was sufficient and that the safety regulator also didn’t require photographic evidence to accept a hazard report. Safety must be taken seriously by everyone in the workplace, but employers can still set the rules and enforce lawful and reasonable directions concerning safety procedures.

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: 3 August 2017

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