Employment & Safety – Tips and Trends: Edition 15


  • ‘Fictional’ fairness – An employer has been ordered to reinstate and compensate a worker it dismissed based on an inadequate medical assessment. In Yan v Spotless Facility Services Pty Ltd T/A Spotless [2017] FWC 922, a catering assistant was dismissed after a functionality assessment found that she could not perform her normal duties without the risk of re-aggravating an elbow injury. However, the FWC found that the assessment was inadequate as it did not address the employee’s duties, how the injury restricted her from performing them or any minor adjustments that could be made to accommodate her condition. Further, the FWC found that the opportunity to respond provided to the employee was ‘fictional’ and the manager failing to return her calls amounted to a denial of procedural fairness.
  • FWC refuses to water down DSP clause – The FWC has warned workers against escalating disputes to the Commission where they have not made a “genuine attempt” to resolve the issue with their employer. In Johnson v Tasmanian Water and Sewerage Corporation Pty Ltd [2017] FWC 1237, a worker sought to activate the dispute resolution procedure (DRP) under the relevant enterprise agreement. The DRP required the worker to take specific steps including referring the matter to their supervisor, escalating the matter to their manager ‘one removed’ and outlining the facts of the dispute and outcomes sought in writing. The FWC found that its powers were not enlivened because the worker failed to particularise the dispute and there was no evidence that the dispute was so urgent as to make the steps of the DRP impracticable. Employers with clear dispute provisions should take comfort that the FWC is willing to enforce strict compliance.
  • Build-up of Industrial Disputes – Recent figures from the Australian Bureau of Statistics indicate that the number of industrial disputes hit an 11-year high last year. A total of 254 industrial disputes were recorded in 2016, which marked the highest annual total since 2005. This resulted in 124,500 days being lost to industrial disputes last year. The Building and Construction Industry had the highest number of working days lost by industry, accounting for 43% of the total working days lost. The study included all industrial disputes that resulted in work stoppages of 10 days or more.


  • Train training: Regulator runs off the rails – The New South Wales Industrial Commission has ruled on a dispute between Sydney Trains and SafeWork NSW on the meaning of a provision in the model WHS legislation, which requires employers to allow Health and Safety Representatives to attend WHS related training in certain circumstances. The Commission clarified that section 72(1) of the legislation does not grant HSRs the right to unilaterally insist on attendance at a specific course or training event. The decision is particularly significant because WorkSafe NSW themselves promoted an incorrect explanation of the right that HSRs have under the section. If your business has one or more HSRs and they request to attend safety training, you must consult with them in good faith to select an appropriate training option, but you are not obliged to allow an HSR to insist upon a particular option without consultation.
  • Doctors’ orders: no ‘right’ to refuse medical exam – In Grant v BHP Coal Pty Ltd [2017] FCAFC 42, the Full Court of the Federal Court upheld an earlier decision that an employer can require an employee to undergo a medical assessment to address reasonable safety concerns. The focus in this case was on Queensland’s Coal Mining Safety and Health Act 1999, but this decision undoubtedly has more general application. Where you have reasonable grounds to question whether an employee is able to safely perform the inherent requirements of their role, you can direct that employee to undergo an appropriate medical examination as part of the proper discharge of your legal duty of care. Reasonable safety concerns may involve a potential risk to the employee in question or to others.
  • Safety policy ‘explodes’ employer’s argument – In Martin v TNT Australia Pty Ltd T/A TNT [2017] FWC 440 the FWC ruled that an employer was wrong to dismiss a worker for his inability to perform the inherent requirements of his position. The statement of inherent requirements relied upon by the employer was found to be faulty, not least of all because it conflicted with their own safety policy. The company asserted that they required their drivers to be able to lift a load which was prohibitively heavy under their own manual handling guidelines. The lesson from this case is that if you need to articulate the inherent requirements of an employee’s position, whether in the context of a potential dismissal or otherwise, make sure that everything you require of an employee is reasonable, lawful and consistent with your documented standards and practices.

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Published: 16 March 2017

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