Congratulations to team member Lorraine Buckley on her recent
wedding to Anthony Zaffiris. On behalf of the E&IR team, we
would like to wish them a wonderful future together. We'd also like
to wish Louise Houlihan a happy birthday!
This month two new trainees, Matt Foley and Georgia Hunt,
commenced with the E&IR team. Georgia completed a double degree
at the University of Melbourne in Law and Science, with a major in
pharmacology. Georgia is an avid skier and also enjoys yoga and
travelling, and in fact completed an exchange in Dublin. She
undertook a seasonal clerkship with Cornwalls in 2009. Matt is also
a Law/Science graduate from Monash University and completed an
exchange in Prato last year. He enjoys travelling and playing
football, as well as long walks on the beach.
We would like to take this opportunity to remind you that the
next HR Forum will be held in February. David Moore, head of our
Intellectual Property team will be leading a discussion on social
media and how it is being used and abused by employees. Further
information about the forum will be distributed shortly.
We hope you enjoy this month's edition, which focuses on some of
the employment issues that commonly occur around the Christmas-New
Year period. Have a happy and safe holiday season!
Bad behaviour
The Christmas party was a big success…drink was flowing and
everybody had a great night, but the employer's hangover may be
just setting in. An employee uninhibited by alcohol was rude,
aggressive, inappropriate, or dangerous. Several employees have
submitted complaints. So what do you need to do? Was the employee's
behaviour so unacceptable as to warrant termination?
There are many instances of courts upholding terminations
following the inappropriate behaviour of employees at work
functions, such as the infamous Telstra Corporation Ltd v
Streeter. In this case, Telstra terminated an employee after
allegations that she had sexual intercourse in a hotel room shared
with other Telstra employees and had exposed herself in front of
them. The Court of Appeal upheld Telstra's decision, but primarily
on the basis that the employee had breached her duty of honesty
owed to her employer. In this case, it was not the personal
situation that provided the valid reason for termination, but her
lack of cooperation with Telstra's investigation. In each case,
whether termination is reasonable will depend on the circumstances,
including the employment history of the employee.
It is important that employers treat complaints arising from
conduct at work functions seriously. Complaints need to be
investigated, just as they would if they occurred in the office or
on the factory floor. However, our advice is that you tread
carefully when it comes to terminating a misbehaving employee. It
may be considered harsh if this conduct was a one-off or if the
employee had many years of faithful service. It is advisable to
seek legal advice before taking such action.
Sexual harassment at Christmas parties
It's that time of year again! With December fast approaching,
employers across the country are planning their end of year
functions. Although such functions can lift morale and foster
positive attitudes, they may also expose employers to legal
liability if personnel act inappropriately.
End-of-year functions can be incredibly fun. Unfortunately,
because they are often offsite, and the alcohol can be flowing,
workers may be more likely to engage in conduct that could be
classified as sexual harassment. Depending on the circumstances,
employers can be liable for the sexual harassment committed by one
employee against another.
The effect of inadequate handling of sexual harassment
complaints can be dire. Earlier this year a senior sales consultant
with IBM lodged a complaint with the Federal Court seeking $1.1
million in damages. The employee alleged that a colleague made
repeated remarks of a sexual nature and subjected her to unwanted
touching. This behaviour was ongoing, and instances occurred at the
staff Christmas party.
There are two principal pieces of legislation in Victoria that
give employees protection from sexual harassment: the Equal
Opportunity Act 2010 (Vic) and the Sex Discrimination Act
1984 (Cth).
There are two main types of sexual harassment that occur in the
workplace:
- harassment accompanied by an employment threat or benefit;
or
- where a hostile work environment is created.
Sexual harassment can be physical, verbal or written, and
includes unwelcome touching, suggestive comments or jokes, unwanted
invitations for dates or sex and sexually explicit electronic
communications.
If an employee engages in such conduct, the employer may be held
liable if they have not taken proper precautions. This is the case
even if the conduct occurs at a work function that is offsite and
oustside normal working hours. To avoid such liability, employers
need to ensure they have taken reasonable steps to prevent such
conduct from occurring, and respond appropriately to any claims
that do arise.
Employers should have in place clear Sexual Harassment,
Consumption of Alcohol and Equal Opportunity policies that provide
examples of unacceptable behaviour. These policies should include
the procedure to be followed by employees who want to make a
complaint. Having such policies in place is not usually sufficient
to establish that a business has taken 'reasonable steps' to
prevent such conduct. Staff need to be familiar with the details of
these policies and should be able to identify and
prevent discrimination and harassment. Shortly prior
to any function, employers should distribute the policies to ensure
that all staff are up to date with their content and have been
trained in what is unacceptable behaviour.
Hopefully, your end-of-year function will occur without a hitch,
but it is always best to be aware and be prepared.
Work parties and safety
Most employers do not want to do away with the work Christmas
party, but workplace parties can be an occupational health and
safety (OHS) minefield. The combination of a
social setting and alcohol can create high spirits, but it may also
lead to the erosion of commonsense. To avoid potential workplace
issues and litigation, it is important for an employer to be
familiar with the potential liabilities associated with hosting a
business party.
Employers are obliged to ensure the health and safety of
employees while they are at work, and it is established that an
employer's responsibility to ensure safety extends to off-site
functions and the trip home.
Employers must do what is reasonably practicable to ensure that
work functions are safe and without risks to health. This might
include inspecting the venue for possible hazards, designating some
managers to remain sober in order to appropriately monitor and
supervise the party, ensuring the responsible service of alcohol
(which includes serving sufficient food and making sure there are
plenty of non-alcoholic options), avoiding menus that may present a
high risk of food poisoning (for example, some buffets) and
catering for employee allergies, making sure decorations are put up
safely and not over emergency exit signs or near sources of heat,
ensuring there are appropriate travel arrangements in place prior
to the party to get staff home safely, and communicating their OHS
policies (particularly with regard to drugs and alcohol) prior to
an event.
Managers who 'shout' employees drinks at an 'after party' may be
extending the employer's liability. Thus, work functions should
have a clearly designated start and finishing time, and after
parties should be discouraged.
The work Christmas party provides an opportunity for a business
to celebrate its wins for the year and to make its employees feel
appreciated. OHS laws shouldn't take the fun out of the
celebration; however, it is important that employers have safety
measures in place to prevent incidents occurring, including at
off-site functions.
Working on public holidays
Given the number of public holidays spanning the Christmas
period, it is likely that many businesses will encounter the issue
of whether employees can be required to work on a public holiday.
The general rule is that an employee is entitled to be absent from
their employment on a public holiday, pursuant to section 114 of
the Fair Work Act 2009 (Cth). An employer may request an
employee to work on a public holiday if the request is reasonable;
however the employee may refuse the request if it is not so.
Similarly, the employee may also refuse if they have reasonable
grounds for refusing.
In determining whether a request, or a refusal of a request, is
reasonable, the following are examples of what may be taken into
account:
- the nature of the business and the work performed by the
employee;
- the employee's personal circumstances, including family
responsibilities;
- whether the employee could reasonably expect that the employer
might request work on the public holiday;
- whether the employee is entitled to receive overtime payments
etc or has a level of remuneration that reflects an expectation of
work on the public holiday;
- the amount of notice in advance of the public holiday given by
the employer when making the request.
What constitutes a reasonable refusal to work on a public
holiday was considered in Steven Pietraszek v Transpacific
Industries Pty Ltd t/a Transpacific Cleanaway [2011] FWA 3698,
where Fair Work Australia held that it was reasonable for a driver
of a waste collection company to refuse to work on Christmas and
Boxing Day.
Commissioner Williams held that it was reasonable for
Transpacific Industries to request the driver, Mr Pietraszek, to
work the public holidays (per section 114 of the Fair Work
Act), because their industry was one that was required to
operate all year round. Further, Mr Pietraszek was a full time
employee, and had been given three weeks' notice that he would be
required to work over the Christmas period.
However the Commissioner went on to hold that it was reasonable
in the circumstances for Mr Pietraszek to refuse to work on the
requested public holidays. In weighing the evidence, Commissioner
Williams considered that Mr Pietraszek hadn't properly explained to
his employer the reasons for his refusal, a course of action that
by itself would have made the refusal unreasonable. He explained
that '[w]here an employee does have good reasons for refusing their
employer's request to work on a public holiday, but does not
explain those reasons to the employer, I do not believe it can be
said that the refusal by the employee to work the public holiday is
reasonable'.
Nevertheless, other factors led the Commissioner to the
conclusion that the refusal was reasonable. These were:
- Mr Pietraszek wished to spend the relevant period at home with
his wife, who suffered from poor health and lacked a driver's
licence, necessitating him to be present in order for her to leave
the house.
- Mr Pietraszek understood that his role was one which did not
require him to work public holidays; although this was inaccurate,
his understanding had not been corrected and indeed was supported
anecdotally because he had not worked any public holidays in the
preceding 12 months.
- He had advised his employer in November, before he was
requested to work Christmas and Boxing Days, that he would be
unavailable to work those days.
- At a toolbox meeting in mid December, where the matter of
working during the public holidays was raised, a misunderstanding
of what was discussed occurred: Transpacific Industries believed Mr
Pietraszek had agreed to work the public holidays; he on the other
hand left under the impression that although his employer had
expressed such a wish, he had not committed to anything and the
issue would be raised at a later meeting.
Having found that it was reasonable to refuse the request, and
that there was not a valid reason for dismissal, Commissioner
Williams awarded compensatory damages (reinstatement not being an
issue because Mr Pietraszek had already obtained new
employment).
Please note that the Gazetted public holidays in Victoria for
the 2011-12 Christmas-New Year period are:
Christmas close downs
The Christmas period is traditionally a time for festive
frivolities, and many businesses compulsorily close down over the
Christmas and New Year holiday period. Such close-downs are common
commercial practice because, depending on the nature of the
industry, the volume of work during this period may be low or a
large proportion of the employees may have requested annual leave,
making it unviable to remain open.
Nevertheless, the right of an employer to implement the
close-down will depend on the applicable industrial instrument.
Many modern awards will contain a provision entitling an employer
to enforce a compulsory close-down, but may require them to give
all affected employees the stipulated period of notice of their
intention to do so. Other common conditions in a close-down
provision entitle employees who have accrued sufficient annual
leave to cover the period (public holidays excluded), to use that
leave for the close-down period and be paid accordingly; those
employees who do not have such an accrual are allowed unpaid leave
for that part of the period for which they have insufficient annual
leave.
However, not all modern awards provide for a close-down period;
employees employed under such awards cannot be compelled to take
annual leave over the period, and instead the employer must obtain
the agreement of each of the employees.
For employees who are not covered by an award or agreement,
section 94(5) of the Fair Work Act 2009 (Cth) stipulates
that an employer may require them to take a period of annual leave,
but only if the request is reasonable. However, the section goes on
to provide that a request may be reasonable if, for example, the
employer's enterprise is being shut down for a period such as
between Christmas and New Year.
For further information on your rights and obligations relating
to a close-down period, please contact the E&IR team.
Top tips for employers for the holidays
- Be clear about expectations regarding absences during the
holidays, particularly after the Christmas party. It may be
advisable to circulate your leave policy, including requirements
for sick certificates
- Remember that some employees may be unable to eat certain foods
or drink alcohol because of their religious beliefs; be sure to
avoid disadvantaging those employees by providing plenty of
soft-drinks and catering for those employees at your work function
(this includes asking in advance about any dietary
requirements)
- Make sure your policy on harassment is up-to-date and brought
to the attention of your employees. Provide guidelines if you have
a 'secret Santa' or 'KrisKringle' about appropriate gifts for the
workplace (see article on harassment in this newsletter)
- Do not discriminate; use 'partners' on invitations
- Make sure if you employ temporary holiday staff that you
properly induct and train them, particularly with respect to your
safety procedures. Also provide extra supervision for these workers
over the Christmas period
- Address safety risks that may arise from reduced staff
levels
- Know what the prescribed public holidays are, including any
days that are proclaimed as a holiday in substitution for a holiday
that falls on the weekend, and ensure that you abide by penalty
rates for working on a public holiday, and that you pay employees
absent on a prescribed public holiday that falls on a normal work
day (see article on public holidays in this newsletter)