Employment & Safety – Tips and Trends: Edition 35

EMPLOYMENT

  • Using your initiative: Maximum term contracts – The Full Bench of the FWC has paved the way for employees on successive, maximum term contracts to access unfair dismissal laws in a recent decision that is likely to have significant implications for employers. Prior to the decision in Khayam v Navitas English [2017] FWCFB 5162 (Navitas), the expiry of a maximum term contract at its ‘end date’ meant that an employee had not been dismissed at the employer’s initiative, and there was no jurisdiction for an employee to bring an unfair dismissal claim. In Navitas, the Full Bench determined that the FWC should consider the entire employment relationship, rather than viewing the most recent contract in isolation. This means that a maximum term contract is no longer a ‘get out of jail free’ card for employers in terms of unfair dismissal applications. If your business uses maximum term contracts, it is critical that you correctly communicate the terms of the arrangement when it is offered and take appropriate care when deciding not to offer a fresh contract. Given the significant implications from this decision, we will be publishing a separate article on this case shortly – stay tuned.
  • Court invalidates golden ticket – The Federal Circuit Court has determined that a not-for-profit enterprise set up to create a railway tourist attraction was a trading corporation, and therefore liable to defend an adverse action claim filed by one of its manager’s after being made redundant. The Fair Work Act 2009 provides that the Court will only have jurisdiction to hear an application where the employer is a ‘constitutional corporation’, which is defined to include a ‘trading corporation’. In Kape v the Golden Mile Loopline Railway Society Inc (No. 2) [2017] FCCA 3014, the railway enterprise sought to have the claim thrown out on the basis that it was a non-profit community service run to benefit the community, and its commercial activities were only a small proportion of its activities and income. The Court determined that the “commercial nature” of the enterprise’s activities, which included tram rides, museum tickets and a gift shop, was “sufficient to warrant its characterisation as a trading organisation”. This decision demonstrates that the Court will take a broad stance in assessing “trading” in this context, and employers cannot expect to completely sidestep claims where their commercial activities are substantial and not merely peripheral to any non-profit activities.

SAFETY

  • What shall we do with the drunken sailor? – In Lewer v Inco Ships T/A Inco Ships Pty Ltd [2017] FWC 6666, a worker argued that his dismissal for breach of his employer’s safety policies, in relation to out of hours conduct, was unfair. The employee attempted to access a secured jetty while intoxicated, to sleep on a ship aboard which he normally worked. He was denied access, following a roughly 40-minute confrontation with security personnel, partly because the employer’s policies did not permit alcohol or intoxication at the workplace. The employee raised two technical points – that his conduct occurred out of hours and that he never actually managed to access the jetty – which were rejected by Commissioner Gregory who placed reliance upon the common-sense intention behind the policies and the safety-critical nature of the employer’s enterprise (transporting fuel). Employers are not required to tolerate wanton breaches of safety policy and may terminate employment in response to conduct which reasonably causes a loss of trust and confidence.
  • Safety confession deserved disciplinary concession – The FWC reinstated an employee who was terminated for safety breaches in Ballam v Pilbara Iron Company (Services) Pty Ltd T/A Rio Tinto Iron Ore [2017] FWC 6248. In finding that the dismissal was harsh, Deputy President Binet placed reliance upon the fact that the employee admitted his breaches at an early stage, apologised to other employees, conceded that he had received relevant training and participated fully in an investigation into his conduct. The decision explicitly emphasises the likelihood that a dismissal of this kind might discourage employees from admitting to safety breaches in future and does not detract from the legitimate aim of maintaining high safety standards. Employers should take note that the FWC in this case was persuaded by a recommendation, made in Rio Tinto’s own investigation report, that the employee should be retrained rather than dismissed. We advise employers to instruct investigators not to provide recommendations of this kind, precisely because of the weight that such recommendations may be given if they are not followed.
  • Sexual harassment: Balancing the rights of the complainant and the accused – An underground coal mine technician was reinstated by the FWC following a finding that sexual harassment allegations made against him by a 19-year old trainee were not substantiated. In Wilson v Anglo Coal (Moranbah North Management) Pty Ltd T/A Anglo American [2017] FWC 4386, Commissioner Paula Spencer found that the complainant’s evidence was not reliable, that Anglo Coal’s own investigation did not take proper account of previous complaints concerning the female trainee’s own highly inappropriate sexual comments and that her performance and behaviour were not adequately monitored. The recent increase in the willingness of complainants to come forward in cases of sexual harassment is a fundamentally positive development, but employers must accord the same level of procedural fairness and thoroughness in all cases to ensure that the rights of complainants and respondents are properly balanced and that sound conclusions are reached.

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: 9 January 2018

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