Employment & Safety – Tips and Trends: Edition 27

EMPLOYMENT

  • Shifting expectations: constructive dismissal – The FWC has recently found that a RSL and Community Club’s reduction of a casual employee’s regular shifts by 75% following a cash handling discrepancy amounted to constructive dismissal. In Balgowan v City of Sydney RSL & Community Club [2017] FWC 3798, the employee claimed she was dismissed when her shifts were substantially reduced after an investigation of a $100 cash discrepancy following completion of a “change box” shift. The employer alleged that the employee had verbally resigned during a meeting after being informed that she was required to undergo training before she would receive any further “change box” shifts. The Commission found that the employment ended due to the actions of the RSL and not resignation, and awarded 13 weeks’ pay as compensation for unfair dismissal. Employers should be aware that unilaterally reducing the shifts of a ‘regular and systematic’ casual employee may give rise to liability in unfair dismissal.
  • Not enough cooks in the HR kitchen – A business with over 40 employees is “large enough to warrant a HR manager and a HR officer”, according to FWC member, Commissioner Michelle Bissett. The comments were made in Newchurch v Tangentyere Council Aboriginal Corporation [2017] FWC 4231 where the Commission determined that an employer had unfairly dismissed a cook it believed was on probation due to interpersonal incidents. The cook had previously completed three months service as a ‘regular and systematic’ casual which meant, when combined with permanent employment, the minimum employment period was satisfied. In criticising the processes of the employer, Commissioner Bissett also commented that it would be expected that the HR employees in a business of that size would “have some expertise in dealing with matters associated with the management and termination of… employees”. This decision provides a good ‘rule of thumb’ for the appropriate number of dedicated human resources specialists in a business with over 40 employees.

SAFETY

  • New WHS bill in Queensland – The Queensland government has introduced a bill containing changes to WHS laws, including some promised earlier in the year. The current legislation in Queensland is based upon the Model Act and the basics won’t change, but the proposed modifications would create some differences to the law in other jurisdictions. The most noteworthy change proposed is the addition of an industrial manslaughter offence with a maximum penalty of 10 years imprisonment for individuals and $10 million fines for corporations. If passed, the bill will also create a new statutory authority, separate from and in addition to the existing regulator Workplace Health and Safety Queensland, to conduct WHS prosecutions in court. It is too early to tell whether these proposed changes will be well received and whether other states might follow suit. Stay tuned for more.
  • The slightly less Wild West – The Western Australian government has announced its intention to dramatically increase penalties under existing laws to conform with the harsher penalties found in the Model WHS Act. The change is said by the WA government to reflect “the seriousness of ensuring the safety of Western Australian workers”, but it also serves as a logical step towards harmonisation in preparation for the planned introduction of the Model WHS legislation in Western Australia. If WA changes over to the Model laws, then Victoria will be the only state not to have adopted them.
  • Safety never sleeps – The FWC has upheld the dismissal of an employee who crashed a vehicle and left the scene of the accident at a mine site in Edgar v SMS Operations Pty Ltd[2017] FWC 3826. The worker claimed that the accident was caused by a ‘micro-sleep’ and that he had requested time off prior to the accident because he was fatigued. Deputy President Bull preferred the employer’s evidence that the worker had indicated he was fit for work and was advised to notify his manager if his condition deteriorated. Crucially, the worker did not follow the incident reporting procedure adopted by SMS; he did not report the accident immediately or isolate the scene of the crash. This was the main reason for dismissal relied upon the employer, not the accident itself. This case demonstrates the importance of clear policies and procedures, not just to prevent accidents, but also to specify protocols for responding to them, particularly in safety critical industries such as mining.

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: 31 August 2017

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