Termination for failure to comply with a reasonable and lawful direction - it's a blood sport.
29 September 2017
Difficulties may arise if an employer's drug and alcohol policy does not specify the method(s) of testing.
Where an employer consistently uses less invasive methods of testing, such as urine testing, to administer its policy, a direction to an employee to undergo a blood test may not be reasonable. Any dismissal of an employee as a result of refusal to undergo a blood test may not be valid.
- Where an employer has a reasonable basis to believe that a drug and alcohol test result has been manipulated, it is reasonable for an employer to direct an employee to undergo a second drug test.
- However, employer drug and alcohol policies should expressly identify the methods of drug testing that may be administered by an employer.
- Drug and alcohol testing should be conducted by a trained and, where possible, accredited drug and alcohol testers who can verify the authenticity and suitability of samples.
Recent developments in the case law
There is an ever increasing body of case law addressing the issue of drug and alcohol testing in the workplace. The recent case of Green v Lincon Logistics Pty Ltd T/A Lincon Hire & Sales  FWC 4916 is an example of the potential negative interaction between broad drafting in a policy, and an employer's previous conduct in administering that policy.
There was no dispute that the applicant in this case - Mr Green - was required to comply with his former employer's drug and alcohol policy and with lawful and reasonable directions.
However, in this case:
- the employer's drug and alcohol policy did not specify the method of testing;
- the employer had in the past consistently used urine testing to administer this policy, which is generally more susceptible to manipulation;
- the employer directed (and Mr Green submitted to) a urine test;
- the Fair Work Commission found that anonymous reports that the urine testing was unreliable provided a reasonable basis to require employees to participate in a second drug test;
- Mr Green was asked to undertake a second test a day or so later. This time he was required to undertake a blood test; and
- the evidence bore out that this previous urine test was closely monitored, despite anonymous reports to the employer of tampering.
On this basis, the Fair Work Commission concluded that, "in the absence of an express policy provision permitting blood testing, and the availability of other testing options which were not of such an invasive nature", the direction that Mr Green undergo a blood test was unreasonable.
Therefore, his refusal was not a valid reason for dismissal. Mr Green was awarded compensation rather than reinstatement.
Read full case here.
Is the Fair Work Commission moving towards incorporating domestic violence leave in modern awards?
The answer to the question above is both yes and no.
The Fair Work Commission (Commission) has recently rejected a bid by the Australian Council of Trade Unions (ACTU), lodged early in 2017, to include an entitlement in all modern awards to 10 days' paid family and domestic violence leave (FDV leave) for the "purpose of attending to activities related to the experience of being subjected to family and domestic violence."
The Commission rejected the ACTU's application on the basis that the:
- ACTU had not made out that ten days' paid leave is necessary to meet the modern award objective, as set out in the Fair Work Act 2009 (Cth); and
- the scope of the proposed clause "attending to activities related to the experience of being subjected to family and domestic violence" is too broad and would be difficult to apply.
The Commission nevertheless accepted that family and domestic violence is a significant problem and its incidence has significant personal impacts as well economic impacts for both the individual and the general community.
The Commission heard evidence that domestic violence against women costs the national economy an estimated $21.7 billion per year. This includes the cost of delivering health services, the loss of productivity on businesses and the increased demand on the criminal justice system.
The Commission also expressed the view that existing entitlements are inadequate to meet the needs of employees who experience family and domestic violence. Deputy President Gooley and Commission Spencer expressed a preliminary view that:
- all employees should have access to unpaid FDV leave; and
- employees should be able to access personal/carer’s leave for the purpose of taking FDV leave.
The Commission is now seeking submissions from interested parties on the Commission's preliminary view with a hearing on the issue set down before the President in October 2017.
KEY TAKE OUTS
Do your employment contracts, or policies and procedures contemplate this issue? Contact us to discuss how we can help.
Call your manager what you want... just not in front of the customers
31 August 2017
Is calling your manager a "racist bitch" enough to justify dismissal?
Last week, in Coffey v QBar Darwin Pty Ltd  FWC 4312, the Fair Work Commission held that a café worker's conduct in referring to his manager as a "racist bitch" did not warrant dismissal.
Mr Coffey, the applicant in the proceedings, made the comment about his manager to a co-worker after his manager allegedly ignored him when he said goodbye to her. Mr Coffey alleged leading up to the time when he made the comment, his manager consistently favoured her fellow Estonian staff members over members of staff who were not Estonian.
After making the comment, Mr Coffey refused to reconcile with his manager, despite the café owner attempting to resolve the situation and he spoke to many regular customers of the café about the issue.
Commissioner Bissett held that while Mr Coffey's conduct was "inappropriate and unprofessional" and warranted some reproach and warning, it did not justify dismissal.
The fact the manager did not hear the comment directly was found to be irrelevant because it was made in earshot of colleagues who were likely to report back to her about it. What was held to be of great importance was customers did not hear the comment. In fact, Commissioner Bissett stated this was Mr Coffey's "saving grace"!
Reinstatement was considered an inappropriate remedy given the small working environment in the café, and the soured relationships. Commissioner Bissett called for submissions on adequate compensation.
KEY TAKE OUTS
- Swearing and name calling often elicit strong reactions from employers given the offensive, and often personal, nature of such conduct. However, employers must consider all of the surrounding circumstances before dismissing an employee for such conduct.
- Ultimately, although swearing and name calling may be inappropriate and unprofessional, it may not constitute misconduct serious enough to justify dismissal.
Read the full case of Coffey v QBar Darwin Pty Ltd  FWC 4312 here
Contracting out labour, but not procedural fairness
30 June 2017
Labour-hire employers are reminded of their obligations when considering the dismissal of employees locked out of a third party site as a result of allegations of misconduct.
These issues were recently considered by a Full Bench of the Fair Work Commission in Tasmanian Ports Corporation Pty Ltd t/a Tasports v Warwick Gee  FWCFB 1714.1
- An employer of an employee assigned to work for a third party at that third party's site does not have an unqualified right to dismiss an employee merely because the employee has had their access to the site revoked.
- If an employee's access to a third party site is revoked, the employer should:
(a) independently consider any allegations of misconduct and provide the employee an opportunity to respond to them; and
(b) if not dismissing the employee for serious misconduct, genuinely consider redeployment options for the employee.
Tasports v Gee
The State-owned corporation, Tasports, owns and operates a number of ports in Tasmania. It also supplies labour to privately owned ports including Grange Resource's Port Latta.
Tasports had an agreement with Grange to provide personnel for loading and shipping work at Port Latta. Tasports's employee, Mr Gee, was assigned to work for Grange at Port Latta.
Grange conducted an investigation into a number of allegations against Mr Gee. Tasports was aware of the investigation but Mr Gee was not aware of the investigation and was not provided any opportunity to respond to matters considered as part of that investigation.
Following the investigation, Grange informed Tasports that Mr Gee's access to all of Grange's sites would be revoked effective immediately as a result of four allegations of misconduct. Tasports requested Grange provide specific details of the allegations and were provided a summary of the investigation and the findings.
Tasports informed Mr Gee it considered Grange Resources' decision to be reasonably open to it and dismissed him saying "you are not able to perform the inherent requirements of your position and there are no alternative positions/duties you could perform at TasPorts."
The Full Bench of the Fair Work Commission upheld a first instance decision that Mr Gee's dismissal was unfair on the basis that:
- the investigation carried out by Grange was procedurally flawed and the outcomes of the investigation unsound;
- Tasports failed to inform Mr Gee that Grange was conducting an investigation or make representations to Grange to conduct a fair investigation;
- Mr Gee was not provided with an opportunity to respond to the allegations; and
- Tasports did not conduct a proper vocational and geographical review of redeployment options for Mr Gee.
A further interesting point is that the contract between Tasports and Grange was not in evidence. Tasports therefore did not establish Grange's contractual right to remove Mr Gee from its site. Even if it were in evidence, the Full Bench said that an employer, who dismisses an employee following the exercise of a "host employer’s" contractual right to remove the employee from its site, cannot rely exclusively on the actions of the host employer as a defence to a claim of unfair dismissal as to do so would be "contracting out" of unfair dismissal liability.
1See also Pettifer v MODEC Management Services Pty Ltd  FWCFB 5243.
Managing sexual harassment in modern Australian workplaces – what's changed?
8 June 2017
Recently we presented to a full room of clients on managing sexual harassment in modern Australian workplaces. It is an issue that has their attention and is being taken very seriously.
What has changed in modern workplaces?
New challenges are being presented by mobile phones and employees' use of text messages, emojis, informal communication channels like Whatsapp, dating sites like Tinder, and social media platforms like Facebook, Snapchat and Instagram. The line between what's inside and outside of work is becoming increasingly blurred. Also, these modern communication channels create challenges in interpretation – aka what does that emoji string actually mean?
In addition, we are seeing an increasing trend in payouts for successful sexual harassment claims. The cases of Richardson v Oracle (total awarded $130,000), Mathews v Winslow Constructors (total awarded $1,360,027) and
STU v JKL (Qld) Pty Ltd (total awarded $313,316.10) are just a few examples.
So what should employers be doing?
Action should be three-limbed.
- Firstly, build employee awareness of what amounts to sexual harassment.
- Secondly, be proactive in the steps taken to prevent such behaviour.
- Thirdly, be responsive to complaints and think of alternative ways to address bad behaviour.
KEY RECOMMENDATIONS – AWARENESS, PREVENTION & RESPONSIVENESS
- Ensure your workplace has an appropriate sexual harassment policy. Update it to cater for modern challenges, such as the use of social media.
- Train employees on how to identify and deal with sexual harassment. Also, build employees' understanding of what's considered to be inside and outside of work.
- Ensure your workplace has an internal procedure for dealing with sexual harassment complaints.
- Take appropriate action when sexual harassment occurs. This includes responding to the low-level harassing behaviours which, if left unaddressed, can lead to larger cultural and behavioural problems.
- Consider alternative ways to address inappropriate behaviour eg QBE reportedly withholding $550,000 of its CEO's bonus for failing to disclose an office relationship.
Can an employer direct an employee to see a company nominated doctor?
11 May 2017
Yes, where the direction is lawful and reasonable.
There is a growing body of case law setting out the circumstances in which an employer may direct the employee to attend a medical examination by a doctor of the employer's choice.
Examples of these circumstances include where the employer:
- is unsure of the health status of an employee due to return from a period of sick leave (particularly if the absence is prolonged);
- has genuine concerns about the employee's ability to perform their position without risk to their own health and safety or that of others; or
- wishes to assess if an ill or injured employee can perform the inherent requirements of their position.
The recent case of Grant v BHP Coal Pty Ltd (No 2)  FCAFC 42 (Grant) adds to this body of case law. Grant upheld a decision to dismiss an employee for, among other grounds, failure to follow his employer's lawful and reasonable direction to see his employer's nominated doctor.
Grant confirms one of the circumstances in which a direction to undergo a medical examination by a company-nominated doctor will be valid. The direction will be valid where the employer genuinely considers there to be an unacceptable risk to the safety of others if the employee returns to work, and the direction is aimed at discharging the employer's statutory health and safety obligations.
In this case, the Full Court found that:
- the Coal Mining Safety and Health Act 1999 (QLD) (Act) recognised that the physical or mental state of a coal mine worker could create a risk to safety; and
- it is consistent with the language and objects of the Act that a coal mine worker could be required to undergo a medical examination that is reasonable and was necessary to ensure there would not be an unacceptable level of risk to safety.
Emerging and re-emerging WHS risks – the next asbestos?
27 April 2017
Recent incidents in which individuals have been exposed to potentially-harmful substances have highlighted the need for businesses to manage the risks arising from PFAS, inhalable dust and asbestos.
While the WHS laws require businesses to assess and control the potential risks associated with hazardous substances, this process can be challenging in circumstances where the scientific and medical knowledge surrounding a particular substance is still emerging.
A spill of potentially toxic firefighting foam at Brisbane Airport earlier this month has prompted the Commonwealth Government to announce it is considering phasing out chemicals containing perfluorooctane sulfonate (PFOS) and perfluorooctanoic acid (PFOA). This follows similar bans announced recently in Queensland and South Australia.
PFOS and PFOA are subsets of the man-made compounds generically known as per‑ and poly- fluoroalkyl substances (PFAS). These chemicals have been used in Australia and overseas in firefighting foams, as well as in the manufacture of household products such as non-stick cookware, fabric, furniture, carpet-stain remover and waterproof clothing.
Concerns about the use of PFAS-based products have prompted a number of state and federal investigations. Despite the inconsistency of evidence linking PFAS to adverse health effects, exposure to PFAS may prompt fear and stress in workers. Businesses must therefore implement strategies to manage both the potential physical and psychological risks arising from these substances.
- Black Lung
In February this year the first case in four decades of coal workers' pneumoconiosis, or "Black Lung", was identified in NSW.
Black Lung is caused by inhaling coal dust. The risk of developing this disease can extend beyond mine workers to any persons who work at coal ports and coal fired power stations.
Although Black Lung was thought to be largely eliminated through a combination of mandatory dust monitoring and health and environmental regulation, its recent re‑emergence means businesses will need to be proactive in identifying measures to control this disease and keep up to date with new laws that are being developed in this regard.
Earlier this year the Queensland Government introduced new regulations to protect miners from Black Lung following 20 reported cases of Black Lung in Queensland. The Queensland Parliament's Coal Workers’ Pneumoconiosis Select Committee is continuing to inquire into the "efficacy and efficiency of adopting methodologies and processes for respirable dust measurement and mitigation, including monitoring regimes, engineering measures, personal protective equipment, statutory requirements, and industry policies and practices, including practices in jurisdictions with similar industries".
- Asbestos Act
The potential health risks arising from exposure to asbestos have been on the radar of WHS regulators for some time. Despite this, a recent report from the NSW Ombudsman found that methods for dealing with asbestos are disjointed, confusing and ad hoc.
The report calls on the NSW Government to introduce "a separate Asbestos Act" to address gaps in the current legislation.
A wide range of businesses are potentially impacted by the presence of asbestos in the workplace and will need to be on the lookout for new laws which dictate how asbestos related risks should be controlled.
WHS – an imperfect harmony?
12 April 2017
Last week the Queensland Government signalled potential changes to its model WHS Law, including the possible introduction of higher penalties and additional criminal offences for individuals. This, along with recent changes in State and Territory governments, poses the question – when do the model WHS Laws become "un-harmonised"?
By 1 January 2013 the Commonwealth and all Australian States and Territories, excluding Western Australia and Victoria, had enacted the model provision of the WHS Law. Since then, what first appeared to be minor "jurisdictional" changes have emerged as larger issues. These differences can create compliance headaches for nationally operating Persons Conducting a Business or Undertaking.
- Inconsistency in sentencing has emerged, as Courts ranging from the Queensland Magistrates Court to the NSW Court of Criminal Appeal, undertake the process of sentencing.
- Regulators have different powers, particularly in requiring answers to questions. Comcare has a "derivate use" provision, making evidence obtained as an indirect consequence of compelling answers inadmissible against individuals, and SafeWork SA cannot compel answers at all where an individual claims a protection from self-incrimination.
- Different Codes of Practice are being followed, with SafeWork NSW preserving 20 "pre-WHS" Codes of Practice, in addition to adopting the Model Codes of Practice published by SafeWork Australia.
KEY TAKE OUTS
- Persons Conducting a Business or Undertaking must keep a diligent eye out for minor, but potentially significant, jurisdictional variations.
- National harmonisation of WHS Laws may start to become a distant memory as changes in Governments continue to occur across the country.
Terminating employment - how important is it to state the date?
30 March 2017
Notices terminating employment must clearly specify the date termination takes effect. Conditional dates need to be avoided.
This was confirmed by the Fair Work Commission in the recent decision of Duggan v Metropolitan Fire and Emergency Service Board  FWC 1197 (Duggan).
To comply with section 117(1) of the Fair Work Act (FW Act), notices of termination should specify the date when the termination is to take effect and, wherever possible, avoid them being conditional on a future event.
An ineffective notice of termination will be particularly problematic for terminations during the minimum employment period (generally 6 months under section 383 of the FW Act). This issue was considered in Duggan.
KEY TAKE OUTS
- Duggan confirms making termination conditional upon a future event, when the precise date of the event is unknown, will not satisfy the requirements of section 117 of the FW Act. An example of this includes termination at the resolution of an industrial dispute.
- This decision can be contrasted with the broader approach at common law. At common law, notice of termination may validly operate subject to a condition, provided the notice is sufficiently certain to allow the conditional date of termination to be ascertainable and the employee is in a position to know that the condition has been satisfied.
- An ineffective notice of termination may result in an employee slipping outside the minimum employment period, opening up the risk of an unfair dismissal claim that an employer would have otherwise been protected from.
Read the full case here