FEBRUARY
Don’t be caught asleep at the wheel when taking disciplinary action
The recent case of Brett Steed v Active Crane Hire Pty Ltd has highlighted the importance of employers following a procedurally fair process when terminating employment.
The employee, a truck driver, was summarily dismissed last year after a logistics manager found him asleep in his truck whilst parked at the depot on the New South Wales Central Coast. The employer issued a letter terminating his employment the next day.
The Fair Work Commission (Commission) rejected the employee’s evidence that he had been resting in the truck due to inclement weather, noting both the logistics manager and the yard manager had seen him sleeping. The Commission also gave no weight to the employer’s witness statements, finding they were ‘not prepared individually, but together’.
It was concluded that whilst the employer had a valid reason for dismissal, terminating the employee on the spot without allowing him to respond or raise issues that might have mitigated his conduct showed a lack of procedural fairness. Finding the dismissal unfair, the Commission decided against reinstatement, determining the worker had shown no remorse for their conduct and there was clear animosity between the employee and their former employer. Compensation will be decided at a later date.
This case highlights the importance of following proper procedures when it comes to disciplinary action in the workplace. Employers must ensure that, even where a valid reason for dismissal exists, they follow a procedurally fair process and that employees are given an opportunity to respond to allegations before any decisions are made.
Reinstatement ordered for employee who threatened to cut co-workers throat
An employee in New South Wales has been reinstated after the Fair Work Commission (Commission) found his dismissal was unfair.
The employee had been employed as a drill operator at an open-cut mine for twelve years when he got into an altercation with a colleague over inadequate ‘housekeeping’ of the drilling equipment. During the altercation, the drill operator said, “if this bloke says to go back to the trucks one more time, I will cut his throat”. As a result, employee was led away from the scene by a supervisor and later dismissed for misconduct.
The Commission found that the employer had a valid reason for dismissal and had followed a fair process. However, the Commission found the dismissal to be harsh noting the employee’s unblemished record, his contrition, the likelihood the worker would find it difficult to obtain alternative employment, and that the altercation was an isolated incident with no physical violence. Additionally, the employee’s PTSD was considered a contributing factor to his behaviour, but was a condition which the employee had taken active steps to manage.
Ordering reinstatement and maintenance of the employee’s continuity of service, the Commission declined to order back pay to underline the inappropriateness of the employee’s conduct.
Employer’s rejection of flexibility request likened to catchphrase “computer says no”
The Fair Work Commission has held that an employer ‘acted unreasonably’ in refusing an employee’s request for a flexible work arrangement, so she could care for her young children.
The employee, a paramedic working for Ambulance Victoria, requested to work 9.00pm to 8.00am, instead of her usual rostered shifts of 6.00pm to 6.00am, to allow her to care for her children while her partner was at work. However, the employee’s request was rebuffed by a senior team manager who stated, “that night shift doesn’t exist”.
In deciding that Ambulance Victoria lacked reasonable business grounds for refusing the request for a flexible work arrangement, Commissioner Johns highlighted that the employer had failed to engage in any discussions with the employee, in the 16-days leading up to their decision.
While Ambulance Victoria argued its rosters were ‘driven by the needs of the community’ and such ‘bespoke rostering was likely to have a significant impact’ on business operations, Commissioner Johns noted that none of this reasoning had been provided to the employee upon rejecting her request.
This is a timely reminder for all businesses to ensure that any request made by an employee for a flexible working arrangement is carefully considered and responded to.
Employee’s resignation not forced by rejected parental leave request
The Federal Circuit and Family Court has held that an employer did not force the resignation of an employee, after refusing her request for parental leave.
The employee, an experienced human resources manager, informed her employer, Willowdale Nominees Pty Ltd (Willowdale), that she needed to take leave to manage her difficult pregnancy after only two months of being engaged with the business.
After Willowdale requested the employee submit a proposal about her future working arrangements, the employee requested to take 12 months off. In their decision not to grant the 12-month leave request, Willowdale noted the human resources manager position was an integral role in the business that could not be temporarily filled and outlined that, in any event, the employee was not eligible for unpaid parental leave, in accordance with the National Employment Standards. When the employee questioned what this decision meant for her ongoing employment, Willowdale reiterated their decision not to approve the leave request and suggested that one option available was resignation.
In arguing she had been unlawfully dismissed on the basis of pregnancy discrimination, the employee’s legal representative stated ‘the only option presented to the employee was to resign and to contact Willowdale when she no longer had caring responsibilities’. However, Judge Manousaridis rejected this assertion and held that, apart from the request for 12 months of leave, the employee had failed to make any other reasonable proposals for Willowdale to consider. In concluding the employee’s claim had no reasonable prospects of success, Judge Manousaridis stated, ‘what forced [the employee] to resign was…[her] not being in a position to continue with her employment’.
‘Employer acted too quickly in dismissing worker over “racist” comments
The Fair Work Commission (Commission) has awarded a worker with $13,500.00 in compensation after her employer, CD Australia Pty Ltd (CD Australia) dismissed and unfairly labelled her a racist person.
CD Australia, a manufacturer of branded alcohol and owner of several bars, employed the worker as a sales executive. They also employed a marketing manager who was responsible for making branded cans. It was known that the marketing manager did not enjoy this task, finding it tedious.
The employee had been on the phone with a co-worker speaking about a large order of branded cans that had come in. The employee joked that the marketing manager would “kill her” as the order took a long time to complete and that if she was mad, she could “swear at her in Brazilian so she didn’t know what she was saying”. The co-worker informed the employee that the marketing manager was not Brazilian, but Argentinian. With altering recollections of what was said next, the employee recalls saying, “Oh, I thought she was”, the co-worker recalls the employee saying, “same, same” to which she responded that they were not. The employee did not know that the marketing manager had overheard a lot of the conversation that had taken place and later asked the co-worker for an explanation.
After the incident, the employee was called to attend a meeting by her general manager who would not divulge why. During the meeting, the employee was given the opportunity to resign or CD Australia would dismiss her due to the “racial slurs” made against the marketing manager and some non-descript racist comments made in the past. The employee was dismissed.
Commissioner Jennifer Hunt found that "no procedural fairness was afforded to [the employee] at all" and that CD Australia "ought to know that requesting a person resign or be terminated is simply no longer acceptable” and that the company had failed to give the employee an opportunity to respond.
CD Australia claimed that the general manager and company director came to the decision to dismiss the sales executive to protect other employees and that racism was against the law.
While the Commissioner found the employee’s comments demonstrated "unsophisticated geographical intelligence and emotional intelligence," they were not racist, and the general manager's suggestion that she had "broken the law" was a "gross exaggeration".
Instead, the Commission found that CD Australia had used the incident as an opportunity to dismiss the employee as her relationship with the general manager had deteriorated. She concluded that CD Australia had no valid reason for the dismissal and should have instead counselled the employee on the marketing manager’s heritage and why mislabelling may cause offence.
FWC to ignore employee after eight unfair dismissal applications in two years
The Fair Work Commission (Commission) has held that it will not entertain the persistent requests for success from an employee after receiving eight unfair dismissal applications as a part of twenty-four other applications within in two years.
The ruling has signalled how far the Commission’s patience will be tested in instances where the previous seven applications had been denied by various members of the Commission because they had no reasonable prospect of success.
Commissioner Bissett, reflecting this has said, "It is not possible for the Commission to order any of the remedies sought by [the employee], and the Commission will not be issuing any certificate of the type sought, […] even if such a certificate did exist."
In 2021, the Coalition Government proposed the Omnibus IR Bill and briefly considered adding provisions to expand the Commissions power under section 587 to dismiss “misconceived” applications, while introducing a new provision restricting “unmeritorious” applications. While the proposed changes would provide some welcome relief to an overburdened Commission and employers, they are yet to be made.
Significant fines following drowning deaths of tourists
In its first decision of the year, the Magistrates Court of Queensland has issued a stern message to employers that, if appropriate, it will impose penalties above and beyond those sought by prosecutors. In Guilfoyle v Huckleberry Australia Pty Ltd, a guided tour company (Huckleberry) organised for a group of travellers on a bus tour of ‘beauty spots’ of Fraser Island. Huckleberry had begun to organise the tour some 10 months prior to its occurrence, however, did not undertake any risk assessments or risk planning.
While on the tour, the group stopped at a lake. The lake was signed, warning that it was not patrolled, that people had suffered injury while swimming there, and that swimming is not recommended. Despite this signage, the bus driver (who was not employed by Huckleberry) informed the travellers they could swim in the lake. Two of the travellers, being teenagers, drowned in the lake.
The Office of the Work Health and Safety Prosecutor brought charges against Huckleberry for breaching their duty of care under the Workplace Health and Safety Act 2011 (Qld). It was of significant note that Huckleberry had not undertaken a risk assessment and could have discharged their duty by telling the travellers not to swim in the lake. Huckleberry pled guilty, and the prosecutor sought penalties between $150,000.00 to $180,000.00.
In assessing an appropriate penalty, Costanzo J considered like decisions, where penalties had been imposed ranging from $250,000.00 to $400,000.00. Ultimately, His Honour considered in light of the comparative decisions and the facts of the matter, that a penalty of not less than $250,000.00 was appropriate.
This case provides a reminder for businesses to undertake risk assessments of hazards which may arise in the course of their operations, and that Courts will not be bound by any penalty sought by a prosecutor but will look to like cases.
Past Briefs
The Brief – Feb 2024
The Brief – July 2023
