Employment & Safety – Tips and Trends: Edition 28

EMPLOYMENT

  • Commission harsh about harshness – The FWC has recently found that the dismissal of a fish slicer who ditched work after ‘overindulging’ in alcohol on Anzac Day was harsh. In Chapman v Tassal Group Limited [2017] FWC 4630, the FWC determined that the reason for dismissal was valid, given the employee “placed herself voluntarily in a position where she was unable to work by reason of the consumption of alcohol”. Although the employee had a previous warning for calling the employer inappropriately whilst intoxicated, the FWC determined that the matter should have proceeded on the basis that this warning was not relevant as it related to the language used, not the intoxication. In those circumstances, the FWC found the dismissal was harsh and awarded the employee $8,229 in compensation. This is a worrying decision for employers which demonstrates that the FWC can often take conflicting or surprisingly broad interpretations of what constitutes ‘harshness’ and the impact this can have in determining whether a dismissal is unfair.
  • Enterprise Agreement Expiry under Review – Tasmanian independent MP Andrew Wilkie has introduced a private members’ bill this week that seeks to limit the power of the FWC to terminate expired enterprise agreements. Currently, an expired agreement can be terminated unilaterally by the employer if the FWC considers it appropriate and not contrary to the public interest. If passed, the Fair Work Amendment (Terminating Enterprise Agreements) Bill 2017 would prevent the FWC from terminating an agreement if it would result in less favourable terms and conditions for any employee covered by the agreement. The Bill also seeks to invalidate any decision of the FWC to terminate an agreement since 22 April 2015, if the decision would not have met the new requirements in the bill. This Bill is clearly attempting to reverse the trend since Aurizon.  We will keep you posted.

SAFETY

  • Hold up before trying to enforce irrelevant policies – The FWC Full Bench has warned that health and safety procedures must clearly set out the circumstances in which they apply in upholding a recent appeal. We previously commented on the first instance decision where the FWC sanctioned the dismissal of an employee who was alleged to have breached Woolworths armed hold-up policy (link). In Mistry v Woolworths Ltd t/a Woolworths Fuel [2017] FWCFB 3926, the Bench found that the employee had a “strongly arguable case that the policies did not apply” given the customer was not armed at the time of the incident. The appeal was allowed and the matter has been remitted to another Commissioner for redetermination. It is almost impossible to draft a policy that covers every single instance of behaviour that could be a risk to health and safety. Employers should be careful to ensure that their policies are broadly drafted to ensure maximum coverage.
  • Reasonableness: Not a one-way street – A recent decision in the anti-bullying jurisdiction has reinforced that reasonable management action will not justify a stop-bullying order. In Application by EK [2017] FWC 3907, an aged care worker sought orders from the FWC after she was allegedly subjected to unreasonable actions from her supervisor such as criticising her written reports, refusing a leave application made outside the time period, giving warnings and ‘ambushing’ her in the carpark which made her feel like a “cornered animal”. In dismissing the application, the FWC found that there was no evidence that the conduct of the supervisor was not reasonable management action. Further, the FWC commented that although the worker held a strong perception that she had been subjected to bullying, the evidence showed that she had responded inappropriately to reasonable management action on a number of occasions. This is a good decision for employers who are met with vexatious bullying claims when trying to undertake performance management.

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: 15 September 2017

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