Employment & Safety – Tips and Trends: Edition 34

EMPLOYMENT

  • Long time coming for long service leave changes – A Bill has been introduced which proposes to amend the Victorian Long Service Leave Act 1992 with the aim of improving flexibility for employees. Amongst other changes, the Bill proposes to allow employees to take leave one day at a time, allow employees to take leave after seven years’ service (instead of after ten years’) as well as treating parental leave the same as other forms of leave, so that it counts toward the accrual of long service leave. Whilst many of the proposed changes are indicative of common workplace practices, Victorian employers should consider whether the amendment would be likely to have an impact on their long service leave arrangements. If passed, the changes are scheduled to take effect from 1 June 2018. We will keep you updated.
  • Cruising for a bruising – An ACT bus driver who was terminated after engaging in ‘road rage’ has been reinstated. In Thomas v ACT Government – Transport Canberra and City Services [2017] FWC 6167, the driver was terminated after getting into an altercation after pulling out in front of a ute. He responded to the ute driver’s threats to “smash him” with a couple of unsuccessful swings at him and by ripping off the ute’s side mirror. The FWC found that whilst the bus driver’s actions in “flipping the bird” and engaging in the physical altercation were “unnecessary and unprofessional”, termination was disproportionate given the driver had an unblemished record of eight years and the other driver was the primary instigator of the incident. In reinstating the driver, the FWC observed that while the employment relationship was “bruised”, it was not beyond repair.
  • Close call: contractual cavity filled by Federal Court – The recent decision of the Federal Court in Avenia v Railway & Transport Health Fund Ltd [2017] FCA 859 has confirmed that employers generally have an implied right to suspend employees (with pay) and require them to participate in an investigation into alleged misconduct. The employee in this case, a dentist, was the subject of several bullying and harassment complaints. He disputed the ability of his employer to suspend him and require him to respond to the allegations because his employment contract did not address these points directly. Justice Lee confirmed that an employer may be entitled to issue these directions when they are necessary to address issues of health and safety or to protect their business, but these considerations must be weighed up against the detriment caused to an employee who is deprived of their ability to work. We strongly recommend that employers include explicit terms in their contracts of employment that deal with these situations to avoid disputes.

SAFETY

  • Road rules argument reaches a dead end – Two Victorian employers have been fined over $1.55 million dollars ($1.3m and $250,000 respectively) under Victoria’s WHS laws in relation to the death of a worker who was killed by a street sweeper. The employers unsuccessfully argued that the activity they were undertaking at the time of the fatal accident was governed by the Road Safety Act 1986 to the exclusion of general workplace safety laws. Their argument was motivated by the modest $7,300 maximum fine which can be imposed under that legislation (compared with just over $1 million for the offence they were charged with). The hefty fine was determined in the County Court after the Victorian Court of Appeal rejected the employers’ argument about which laws applied. Persons conducting any business that employs workers in any capacity should be aware of the broad application of workplace safety laws and the severe (and ever-increasing) fines that can be imposed for contraventions.
  • FWC: Pobody’s nerfect – the anti-bullying jurisdiction is an increasingly popular venue for aggrieved employees, and the availability and versatility of remedies (see related article) has increased the level of scrutiny directed towards employer management action. However, managers should take some comfort from Deputy President Bull’s reminder in Kotevski [2017] FWC 6154 that management action does not breach the Fair Work Actsimply because it is not perfect. The FWC observed that the claim in this case was “not without merit”, but that the shortcomings in the employer’s processes were not enough to establish that bullying had occurred. Performance managing or disciplining difficult employees can lead to tense situations and cooler heads don’t always prevail. Employers should always try to remain patient and consider whether an outside observer (such as the FWC) would view their actions as fair and reasonable. However, the FWC will not expect an unrealistic or flawless standard and employers should consider this in deciding how to respond to allegations or claims that relate to bullying.

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: 13 December 2017

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