Employment & Safety – Tips and Trends: Edition 30

EMPLOYMENT

  • Pilot program in full flight – An FWC member has commented on a ‘spike’ in the reinstatement of employees occurring in New South Wales, with reference to a pilot program that aims to accelerate unfair dismissal claims. At the recent Queensland IR Society convention, Vice President Joe Catanzariti discussed that the pilot program maintains the practice of unfair dismissal applications initially going to a telephone conciliation but aims to list the matter for a final hearing within 70 days. The Vice President commented that he and his colleagues have seen an increase in reinstatement being ordered as a remedy under the pilot program: “It seems to me the faster a matter gets on”, the greater the chance of reinstatement. These comments are indicative of effort by the FWC to prioritise reinstate of employees even where there are some obstacles to returning them to the workplace or where they may have previously decided that compensation was more appropriate.
  • From the Bench: Runaway settlement – A Full Bench of the FWC has highlighted the importance of ensuring that a settlement negotiation is finalised before seeking to dismiss an application. In Singh v Sydney Trains [2017] FWC 4015, a former Sydney Trains employee appealed a decision which dismissed his unfair dismissal claim due to the matter having “reached finality” prior to the hearing through negotiations between the parties over email. The Full Bench found that while Sydney Trains had accepted the team leader’s solicitor’s settlement offer, this was subject to qualifications that were not solely for the benefit of the employee. In upholding the appeal, the Bench commented that “while they were clearly desirous of reaching a settlement and their solicitors were confident of such a deal being struck, the communications between the parties’ solicitors did not express, objectively, an intention to make a concluded bargain, nor was there an acceptance which precisely corresponded to an offer.” Often there are grey areas between negotiations and reaching a final agreement. Employers should be careful to ensure negotiations are concluded with a formal, written agreement before seeking to rely on any understanding.
  • Casuals down for the count – The FWC has confirmed that non-regular casuals can be included in a majority support determination for bargaining. In Construction, Forestry, Mining and Energy Union [2017] FWC 5043, the CFMEU argued that the employer had attempted to “stymie” its majority support determination application by hiring a casual employee who had worked up to three shifts and the employee should not be counted in the number of employees because he was not a regular and systematic worker. In rejecting the application, Deputy President Gooley commented “there is nothing in the Act that suggests that the only casuals that can participate in bargaining for and voting on an enterprise agreement are those casuals who are employed on a regular and systematic basis.”

SAFETY

  • Eight bullying orders: Fault on both sides – The FWC made eight separate anti-bullying orders in Burbeck v Alice Springs Town Council [2017] FWC 4988. The orders included a requirement for the employer to provide bullying training and review their policies, and for the worker to participate in performance counselling. The worker alleged that she was subjected to unreasonable management action, including censure in front of other colleagues which could have been conducted in private. Commissioner Wilson found that while the employer had acted unreasonably, the worker’s own lack of interpersonal skills contributed to the workplace conflict. This case demonstrates the broad powers of the FWC to issue varied orders in bullying cases and should also serve as a reminder that unreasonable employee behaviour is not an excuse for rash or retaliatory management action. Check out our recent article on bullying for more information.
  • Reckless worker cops a spray – An unfair dismissal claim made by an employee who sprayed a colleague with a paint gun has been rejected by the FWC. The employee claimed that he sprayed the newly recalibrated gun into “open air” expecting it to hit a wet wall. Deputy President Anderson found that it was unnecessary to determine whether the worker sprayed his colleague intentionally because, at best, he was “recklessly indifferent” towards the safety of fellow employees who might foreseeably walk into the line of fire. This case is another reminder that safety counts for a lot when it comes to assessing the fairness of a dismissal and other disciplinary action.
  • Lack of consultation cometh before the fall – A labour hire worker who slipped and fell two metres while working in wet conditions has been found 33% contributorily negligent for his injuries in Kabic v Workers Compensation Nominal Insurer (No. 3) [2017] NSWSC 1281. The negligence of the host employer was found to have been the principal (66%) cause of the worker’s accident. The court determined that the host employer’s foreman directed the employee to perform the work at height in wet conditions and that it was incumbent upon him to check the slipperiness of the area or wipe it with a towel. However, the employee had been trained to make reasonable enquiries and bring perceived safety risks to the attention of supervisors and failed to do so. This case is an example of the legal and practical importance of consultation in relation to the management of safety risks and that the involvement of more parties (e.g. in a labour hire situation) increases the need for deliberate coordination.

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: 16 October 2017

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