Employment & Safety – Tips and Trends: Edition 29

EMPLOYMENT

  • Employer’s duty of care: getting on the same Paige – The High Court has granted a worker special leave to appeal a decision which found that her employer did not have to protect her from psychological damage caused by its workplace investigation, with specific consideration of the authority of State of New South Wales v Paige [2002] NSWCA 235. Before the Queensland Court of Appeal in Govier v The Uniting Church in Australia Property Trust [2017] QCA 12, the employee claimed that her employer caused her a psychiatric injury after sending two letters commencing an investigative process into an incident where a co-worker seriously assaulted the employee. The Court of Appeal determined that while the timing and content of the letters aggravated the employee’s condition, it only amounted to 15 percent of her loss (with the actual assault amounting for 85 percent). This is an area to watch for all employers who undertake workplace investigations – we will keep you updated.
  • Genuine redundancy: Buttar you considering redeployment? – The FWC has ordered PFD Food Services to reinstate a former supervisor to an equivalent role despite his former job no longer existing and the employer’s claim that the employment relationship has broken down. In Buttar v PFD Food Services [2017] FWC 4409, Deputy President Anderson found PFD had a genuine business reason to restructure the supervisor’s job because the Adelaide Fish Room had suffered from a downturn in profitability and performance. However, the supervisor was found to have been unfairly dismissed because PFD failed to “give reasonable consideration” to redeployment when they notified the supervisor he was being made redundant on the day it took effect. The Commission ordered reinstatement despite acknowledging that it would reintroduce an ongoing labour cost that the employer had sought to eliminate, and the relationship between the supervisor and the State manager had been placed under “severe strain”. This is a reminder of the importance of considering redeployment when undertaking a restructure.
  • As the saying goes, big workplace = big responsibilities – In a recent decision, the FWC has commented how the size and consequent access to internal and external HR expertise should assist employers to provide procedural fairness to an employee. In Garg v Eureka Operations Pty Ltd T/A Coles Express Brandon Park [2017] FWC 4805, an employee at the Coles Express service station was dismissed for failing to pay for fuel when she filled up her car. In upholding the dismissal, Commissioner McKinnon commented that Coles’ scale had “clearly influenced the procedures” followed, noted that at the time the team member departed, Coles had about 100,000 employees and “access to dedicated human resource management expertise internally as well as the capacity to source additional legal or other third party expertise as it sees fit”. It is clear that employers with significant resources and HR expertise will be held to a higher standard of procedural fairness.

SAFETY

  • Unprofessional judgment – A worker’s award of $1.5 million in damages was upheld by the Queensland Court of Appeal in Brisbane Youth Service Inc v Beven [2017] QCA 211. The family support worker was sexually assaulted by a client with a known history of violence and inappropriate sexual behaviour. The worker had personal knowledge of these risks when she made the decision to become involved with the client, but the Court held that this did not absolve her employer of their obligation to take reasonable steps to protect her safety. Employers should be aware that they cannot simply defer to a worker’s professional judgment even where a situation or the inherent nature of a worker’s role poses a high level of risk. We strongly recommend a consultative and collaborative approach to managing risk in situations of this kind, so risks can be effectively brought into focus and protective measures can be optimised.
  • Safe Work Month 2017 – October is National Safe Work Month and Safe Work Australia has already launched most of its online content in preparation. SWA offers statistics, news and opportunities for the recognition of outstanding safety initiatives and practices. If you want some free ideas and resources for improving workplace safety, or you want to share your own ideas and accomplishments, get to the website and have a look around.
  • Bullying claim dismissed, but mushroom for improvement – The FWC has given some prudent advice to employers in the recent decision Stefan [2017] FWC 4677. In this case, an employee of a South Australian mushroom company made a bullying application, claiming that his superiors had excluded him from training opportunities, performance managed him unreasonably and belittled his abilities in front of co-workers. The claim was found to be unsubstantiated, but Deputy President Anderson cautioned the employer on a letter they sent to the worker, warning him for lateness which was caused, as they knew, by his attendance at an FWC teleconference related to his claim. We endorse his suggestion that employers whose conduct is or may be under “independent scrutiny by the Commission” should act with an abundance of caution, even in the face of unreasonable employee behaviour or unfounded claims.

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: 29 September 2017

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