Employment & Safety – Tips and Trends: Edition 8

EMPLOYMENT

  • Just for kicks: Volunteer soccer coach gets the boot – The FWC has recently clarified the distinction between employees and volunteers. In Grinholz v Football Federation Victoria Inc [2016] FWC 7976, a coach of a children’s soccer team filed an unfair dismissal claim after being suspended before the end of the season. In this case, the terms of the ‘volunteer services agreement’ between the parties were relied upon to dismiss the application. Businesses are taking significant risks if they rely on a ‘handshake’ instead of ‘naming up’ and formalising volunteer relationships.  In particular we recommend expressly confirming that an employment relationship is not intended by the parties.
  • Global roaming: Internationally mobile employees – The move towards globalisation has led to many employment relationships becoming globally mobile with an increase in employees who ‘roam’ between different countries for work. Case law in recent years has demonstrated the need to consider which country’s employment laws will apply to international work arrangements. Be aware that including a ‘governing law’ clause in a contract of employment may not be enforceable where the employment does not have a sufficient connection with that country.
  • Status Update on Redeployment #GenuineRedundancy – A recent decision has found that an employee’s change resistance can be taken into account when determining whether redeployment is reasonable. In Wardley v Australian Red Cross [2016] FWC 8198, the redundancy of an experienced, “competent and conscientious” communications advisor was held to be genuine due to his resistance to social media leading to difficulties with redeployment to another role. Despite obvious similarities between the new role and the advisor’s previous position, it was held to be a genuine redundancy. This is a good decision for employers with employees who cannot keep up with the changing demands of their operations.

SAFETY

  • Employer spitting chips after reinstatement order – The South Australian Industrial Relations Commission has reinstated an employee after he was terminated for spitting on a colleague: Hedges v Wakefield Regional Council [2016] SAIRCComm 11. The Commission found that the spitting incident was a serious breach of the WHS Act and could even constitute criminal assault. Consequently, the employer had a valid reason for dismissal. The problems the Commission identified with the dismissal related to procedural flaws. The employer had carried out a one-sided investigation that did not properly consider surrounding circumstances. This ‘tainted’ the decision to terminate, which was based primarily on the report. There is an increasing trend in tribunals overturning an employer’s preferred outcome because of a lack in the investigation of thoroughness, timeliness or transparency or all of the above.  It is a ‘false economy’ to take short cuts in investigation processes.
  • Cleaning house: you, me and debris – An employer in Western Australia was fined $85,000 under the state’s WHS Act after a roof collapse killed a labour hire worker. The collapse was caused by a build-up of debris which fell from large elevated conveyor belts. At the time of the accident there was approximately 700kg of waste on the roof. This is a striking example of a failure to implement safe systems to mitigate a ‘slow burning’ risk. The risk from debris fall probably seemed inconsequential because it occurred incrementally over a long period. Regular checks and clean-ups, which have now been implemented by the employer, would have prevented the debris from building up to such immense proportions.
  • State government affairs: bullies beware – A recent decision of the Fair Work Commission’s Full Bench suggests that the availability of various entitlements under the Fair Work Act extends further than previously thought to employees of certain state government agencies. In Lim v Trade and Investment Queensland [2016] FWCFB 6615 the Full Bench determined that the state agency in question was a “constitutionally covered business”. Many rights and remedies under the Fair Work Act only apply to constitutionally covered businesses. The status of a business will often depend, as it did in this case, upon whether they carry out trading activities. This decision has a number of WHS implications, including the availability of stop bullying orders. Failure to protect the mental health of employees is becoming increasingly risky from a WHS perspective for all businesses. Even state government entities will not necessary be immune from Federal WHS remedies found in the Fair Work Act.

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

Rod Collinson
Partner
M: 0430 221 067
E: rcollinson@pageseager.com.au

Luke Gattuso
Partner
M: 0411 989 292
E: lgattuso@pageseager.com.au

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