Employment & Safety – Tips and Trends: Edition 33

EMPLOYMENT

  • Prison worker’s discrimination debacle – A recent decision has highlighted the consequences an employer may face in not asking the right questions in pre-employment checks or following up on evasive or missing answers. In Ferris v Department of Justice and Regulation (Human Rights) [2017] VCAT 1771, a prison worker claimed that he was discriminated against in that he was treated unfavourably, suspended and dismissed because of his type-2 diabetes. Specifically, he claimed that significantly increased inmate numbers meant that he was required to accommodate an extra workload, work unpaid overtime and forego planned breaks, which disadvantaged him as a diabetic and caused his condition to become unstable. The Victorian Civil and Administrative Tribunal found that the employer had indirectly discriminated against the prison worker, but made no order for compensation because the worker had failed to declare that he had diabetes when he was engaged or notify his employer when his condition became unmanageable.
  • Adverse action claims: sometimes it’s okay to settle –  The FWC’s Annual Report for 2016/2017 has demonstrated that adverse action claims are on the rise, with a 14% increase in general protections applications involving dismissals. There were as many as 3,729 applications made in 2016-2017. The increase clearly highlights that adverse actions are becoming the ‘go-to’ claim, particularly for those employees who may not have unfair dismissal protection (see our recent article for more on adverse action). Although the Report demonstrates an increase in general protections claims involving dismissal made, 73% of the claims were resolved at conciliation, withdrawn or were made out of time (and refused an extension of time).
  • Coles baker goes down down – In a decision handed down this week, the FWC has found a Coles Supermarket baker who texted an explicit image to his manager was not unfairly dismissed. In Higgins v Coles Supermarkets Australia Pty Ltd T/A Coles [2017] FWC 6137, the baker argued that he considered his manager to be a personal friend, that they often exchanged personal text messages via their “private” phones, and that there was a culture within the bakery team to share explicit material. Whilst the FWC found that the baker’s conduct would not “fall within the definition of sexual harassment in the [Coles] equal opportunity policy”, he said it was a clear breach of the requirement in the Code of Conduct to treat others with dignity and respect. Even where employees have personal relationships in the workplace, their interactions still need to comply with an organisation’s policies and procedures.

SAFETY

  • Who invited you? – The High Court has rejected an application for special leave to appeal against the Full Federal Court’s decision concerning the powers of workplace health and safety representatives and their invitees. It is now settled that a union member must comply with the right of entry provisions in the Fair Work Act to enter a workplace, even if they have been invited by a health and safety representative to render assistance. This result is generally considered to be a win for employers, who will not need to worry about invitations from HSRs being used as a way to circumvent right of entry legislation.
  • Fitness for work and medical examinations – The FWC has provided useful guidance about the extent to which an employer can request and rely on medical information in determining fitness for work. In Naicker v Epworth Foundation [2017] FWC 4928, a nurse took two weeks of annual leave to recover from stress related to an increased work load. She was asked to produce a medical certificate certifying her fitness for work before returning to her duties. While off-duty the nurse delivered the medical certificate to HR in an intoxicated state. She was taken for alcohol testing out of concern for her well-being. Following this incident, the worker was directed to submit to independent medical examinations, and to disclose the results of the alcohol testing from the intoxication incident. Deputy President Gostencnik ruled that the employer was entitled to direct the worker to undergo independent examinations and to rely on those reports, but it had no right to compel disclosure of the alcohol test results or rely on refusal to comply as a reason for termination. This was because the employer had sufficient evidence concerning fitness for work already, and the drunken incident occurred when the employee was off-duty, so she was effectively a private patient. The employee was validly dismissed for aggressive and inappropriate comments she made to an HR employee, but the FWC rejected the suggestion that she had also refused to comply with a lawful and reasonable direction in relation to the additional medical records.

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: 27 November 2017

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