Employment & Safety – Tips and Trends: Edition 9

EMPLOYMENT

  • Summary Dismissal: don’t delay or be prepared to pay – A recent decision has confirmed that a summary dismissal delayed may be a summary dismissal denied. In Wong v Taitung Australia Pty Ltd [2016] FWC 7982, the employer became aware of allegations that a delivery driver was involved in criminal conduct involving the theft of produce. Following advice from police, the employer deferred any disciplinary action against the employee. Three months later, the driver complained about the condition of his truck which the employer rejected. The employer then scheduled a disciplinary meeting with the employee and summarily dismissed him for serious misconduct in relation to a “joint criminal enterprise”. Employers should act quickly to investigate allegations of serious misconduct and be aware that a summary dismissal may be unfair if it is not effected in a timely fashion.
  • ROC-king the boat – In recent weeks, the Senate passed the Fair Work (Registered Organisations) Amendment Bill 2014, which seeks to impose higher standards of regulation on union officials including much more rigorous disclosure requirements in areas such as remuneration, material personal interests and payments received. The Bill establishes a Registered Organisations Commission (ROC) that will monitor the activities of registered organisations and provide enhanced investigatory and information gathering powers, modelled on those available to ASIC. Employers with a strong union presence should stay tuned for developments in this area.
  • Executive ‘accountable’ for post-dismissal conduct – In Finemore v CMIB Insurance Services P/L [2016] FWC 8517, an account executive was terminated after it was discovered she had sent a client list to her personal Gmail two minutes after submitting her resignation. A rival company later informed the employer that the employee had given them a USB containing ‘highly sensitive’ company information. In dismissing the application, the FWC commented that reasons for termination can include other reasons that occurred after termination where they are established at the time of hearing. Don’t underestimate the value of evidence of misconduct gleaned after termination.

SAFETY

  • Construction Commission building a case – The newly reformed Australian Building and Construction Commission will proceed with an appeal of a recent decision delivered by the Federal Court in Director of the Fair Work Building Industry Inspectorate v Powell [2016] FCA 1287. In that case the court ruled that a union official didn’t need a federal permit to enter a workplace at the request of a health and safety representative made under section 70(1) of the Victorian OHS Act. The decision would also apply to the equivalent provision in section 70(1)(g) of the Harmonised WHS Legislation that applies in Tasmania. We will keep you updated on the outcome of this appeal.
  • Employer trippin’ over damages payout – The Victorian Supreme Court has ordered an employer to pay $688,000 in damages to a worker who tripped on a protruding metal plate on the floor of the workplace. The worker suffered serious shoulder injuries. The court rejected an argument from the employer that the absence of prior accidents caused by the plate, which was in a thoroughfare, showed that the risk was not serious. The judgement observed that the employer could have used a sign or barrier around the hazard as an interim measure, but failed to do so. The need for “systems of inspection and maintenance in a busy workplace” was also emphasised.
  • Enforceable undertakings not a right – Three employers in Queensland have failed in their attempts to enter enforceable undertakings with the State’s safety regulator and have been prosecuted instead for breaches of the Harmonised Safety Legislation. All three breaches involved fatalities and fines above $100,000. Enforceable undertakings are increasingly used by regulators to secure improved safety outcomes and avoid the expense and time of a prosecution. However, employers should not take them for granted or see them as a guaranteed alternative. In serious cases, safety regulators may opt to secure convictions.

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

Published: 16 December 2016

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