Our team news is short and sweet this month. Tracey Davies,
Partner, celebrated her birthday (Happy Birthday Tracey!) and
Lorraine Buckley, Legal Assistant, celebrated her 3 year
anniversary with Cornwalls. Congratulations Lorraine!
Discrimination cases round-up
There is no shortage of discrimination cases around at the
moment; we have selected a couple that we thought were particularly
important for employers.
Adverse action breach without intent: at lower end of
the scale
The Federal Magistrates' Court has substantially reduced the
penalties agreed between the Fair Work Ombudsman and an employer
after it found the breaches of the adverse action provisions were
at the lower end of the scale and that the information the employer
obtained from the Fair Work info line was 'profoundly unclear'.
The employer engaged a qualified hairdresser as a trainee after
the employee made clear in his interview that he had a permanent
disability. He was paid $10 an hour, which was substantially less
than the award rate he was entitled to. Federal Magistrate Emmett
accepted that the employer 'sought to trial [the employee] both in
respect of his ability to perform the work and his competence'
after being informed of the employee's injury, and also that the
employer honestly believed the hairdresser had not completed the
requisite 1,000 hours that would have attracted the higher award
rate.
The fact that the employer did not intend to deliberately take
advantage of the employee was crucial. Her Honour said that while
contravening adverse action laws by discriminating on the basis of
disability constituted 'serious offences', the seriousness of the
particular conduct should be determined by reference to the 'most
serious conduct imaginable that would attract the maximum
penalty'.
The info line provided by Fair Work cannot generally be relied
upon for legal advice. Where employers are uncertain, they should
seek advice on appropriate rates from a legal professional
[Fair Work Ombudsman v Drivecam Pty Ltd [2011] FMCA
600].
On suitable comparators
The Victorian Supreme Court has set aside a VCAT ruling and
ordered the case be heard again after finding that VCAT wrongly
rejected a discrimination claim, saying that the tribunal ignored
the established principle that courts would interpret human rights
legislation, such as equal opportunity laws, 'as beneficially as
their language will permit'.
The employee suffered bipolar disorder and on two occasions
experienced severe depression requiring hospitalisation as a result
of 'unreasonable pressure and hours of work'. After both periods of
illness, she received workers' compensation payments and between
the two episodes of depression was placed in the hospital's return
to work program. However, after the second incident she was refused
entry into the return to work program and was eventually
terminated. An internal email from the employer's OHS manager to
his supervisor said it would be best to get the employee off the
organisation's books, rather than have to rehabilitate her.
At first instance, the employee sought to be compared to other
injured or ill employees who had been given access to a return to
work program. VCAT dismissed the employee's claim, stating that in
this type of case it was impossible to identify a suitable
comparator. However, Justice Bell found the correct interpretation
of the equal opportunity legislation would mean that 'where age,
physical features, sex or such disability discrimination is
alleged, the comparator may be someone of different age, features,
sex or impairment. In each case, such a comparator answers the
description of "someone without that attribute"'.
Justice Bell held that no Victorian worker would be protected
from disability discrimination by the state's equal opportunity
laws if the tribunal's interpretation was left to stand
[Collier v Austin Health & Ors [2011] VSC 344].
Withdrawal of job offer on medical grounds not
discriminatory
The NSW Administrative Decisions Tribunal has found a company
not guilty of unlawful disability discrimination after withdrawing
a job offer on the basis that the worker had various medical
conditions that would have prevented her from performing the
essential physical aspects of the role. The worker was the
preferred candidate for a position, however she was informed that
her offer of employment was conditional upon her satisfactorily
completing a pre-employment medical examination.
Following a medical examination, the company was informed by the
attending doctor not to employ the worker on the grounds that there
was a 'high risk' of a workers' compensation injury, including an
aggravation of her existing conditions. The worker had a knee
condition, making her incapable of kneeling, crouching, climbing or
undertaking tasks involving repetitive work. She also had a neck
injury and suffered from a number of other medical conditions,
including hypertension, diabetes, high cholesterol, congenital
hearing loss in one ear and morbid obesity.
In accepting the doctor's medical advice, the company advised
the worker she was unfit to safely perform an essential part of the
job, and the job could not be modified appropriately. The tribunal
accepted the evidence of the doctor, saying that his evidence was
not that the worker could not at that time perform the requisite
site visits, but that if she was required to carry out the type and
extent of site visits that formed an essential part of the
position, she would have a significantly increased risk of injury
and/or deterioration of her knee, as well as an increased risk of
aggravating her other medical conditions.
The tribunal found the worker had been discriminated against,
however it nonetheless determined that the proven discrimination
was not unlawful because the worker's disabilities rendered her
unfit to perform the inherent requirements of the role with
reasonable safety to herself. Knowing of her disabilities, it would
have been unreasonable on the employer's part to require her to
carry out all site visits on all sites and in all conditions.
The worker's complaint was dismissed.
For employers
Employers should clearly set out the requirements for medical
examination and assess any opinions on an ability to work
practically. An employee must be able to perform the inherent
requirements of the particular employment with reasonable safety to
the individual concerned and to others with whom that individual
will come into contact in the course of employment. Whether it is
reasonable to withdraw an offer of employment will depend heavily
on the nature and size of the risks that are said to arise.
Harmonisation regulators
The Workplace Relations Ministers' Council has endorsed the
National Compliance and Enforcement Policy
(Policy), which will focus on regulators and
assisting compliance with the Work Health and Safety Act in the
event of an alleged breach. The aim of the Policy is to ensure
consistent enforcement of the Work Health and Safety Act and
Regulations across all jurisdictions.
According to the Policy, the criteria that will guide
enforcement decision-making include:
- the actual or potential consequences of the breach;
- the culpability of the duty holder (by assessing how far below
acceptable standards the conduct falls and the extent to which the
duty holder contributed to the risk);
- the compliance history and attitude of the duty holder;
- whether it is a repeat offence or if there is a likelihood of
the offence being repeated; and
- any mitigating or aggravating circumstances.
The model of regulation is similar to that which currently
operates in Victoria, with the regulator seeking to use a mix of
positive motivators and deterrents to encourage compliance. It is
acknowledged that it is not possible for OHS regulators to
investigate all issues of non-compliance; however, OHS regulators
will be more likely to investigate employers that have been issued
improvement notices in the past.
There can be serious legal consequences for failing to ensure a
safe workplace. Employers should familiarise themselves with the
new laws and this Policy.
The Policy has been made available to the public on Safe Work Australia's website.
Workplace gender reporting the key to unlocking government
tenders and funding
Changes to the current Equal Opportunity for Women in the
Workplace Act (EOWW Act) may dramatically affect
the ability of businesses with over 100 employees to gain
government work and receive government funding.
Amendments to the EOWW Act were announced by the Federal
Minister for the Status of Women, Kate Ellis, in March 2011,
including renaming the EOWW Act as the Workplace Gender Equality
Act (WGE Act).
The announced amendments affect organisations that employ over
100 people, which will be required to prepare annual reports on
gender equality outcomes.
The reports must be signed off by both the CEO and employee
representatives of the organisation before being submitted to the
new Workplace Gender Equality Agency.
The WGE Act will allow parliament to name and shame those
organisations that do not comply with the new Act.
However, the real hit to organisations will be the prohibition
on the federal government to award tenders and provide funding,
including grants and industry assistance programs, to non-compliant
organisations.
Currently, the federal government provides 80,000 contracts
totalling $4 billion. The proposed amendments prohibit the federal
government from awarding tenders and funding to organisations that
do not comply with the new reporting requirements.
The new amendments enshrine pay equity and require reporting
on:
- gender compositions of the organisation and the Board;
- employment conditions; and
- flexible work practices for men and women.
The reports aim to provide the federal government with tangible
outcomes achieved in organisations regarding workplace equality and
pay equality. The reports are also able to be accessed by
shareholders and employees.
It was further announced that regular spot-checks will be used
as a weapon to ensure the submitted reports coincide with the day
to day operations of the organisations.
The reforms are expected to be introduced over 4 years, with
annual reporting to become mandatory by 2013. The proposed
legislation is set to be introduced to parliament in October.
No consultation about alternative duties leads to non-genuine
redundancy
Fair Work Australia Commissioner John Ryan has found that the
redundancy of an employee was not genuine because the employer did
not consult or offer the employee alternative employment, including
offering a lower paid position.
In Margolina v Jenny Craig Weight Loss Centres Pty Ltd
[2011] FWA 5215, the employer mistakenly assumed that a Modern
Award did not apply to an employee who was made redundant.
The employee fell within the coverage of a Modern Award that
required the employer to consult with the affected employee about
redeployment within the organisation.
The employer argued that management thought the employee would
be 'insulted' if she was offered a lower paid position.
The Commissioner said the employer failed to comply with the
Modern Award and should have consulted the employee about
redeployment within the organisation, including in a lower paid
role.
An employee who sustained an injury during a lunch-break has
been denied compensation
In Green v Comcare [2011] AATA 639 the AAT confirmed
that injuries which occur during a recess are only compensable if
they occur at the employee's place of work.
The employee left the employer's building for lunch and slipped
outside the front of the building, injuring her knee.
The employee claimed her injury was sustained during the course
of her employment and sought workers' compensation.
The AAT denied workers' compensation on the basis that the
injury was not incurred at the employer's place of business,
reiterating that the injury must occur at the employer's place of
business if suffered during 'an ordinary recess'.
A truck driver's breath led to an unfair dismissal
A Victorian truck driver sacked on the suspicion of being under
the influence of alcohol on the job has received over $10,000 in
compensation because his employer did not afford him the
opportunity to respond to the suspicion.
Fair Work Australia (FWA) ruled that the truck
driver's dismissal was unfair because he was not afforded
procedural fairness. This was despite FWA determining that it was
reasonable to send the worker home on the day and that it would be
negligent on the employer's behalf to allow an employee suspected
of being under the influence to drive a truck.
On 19 March 2011 the truck driver (Applicant)
entered his usual place of work to drive a heavy rigid vehicle.
Current road safety laws in Victoria require truck drivers to have
a blood alcohol content (BAC) of 0.00%.[1]
The Applicant clocked in and filled out his usual paperwork,
including a certification that he had a BAC of 0.00%. A number of
co-workers smelled alcohol on his breath. The Applicant was then
told he would not be able to work; he responded by saying 'yeah
well I had a big night last night'.
Two days later, the Applicant's employment was terminated and he
was paid one week's pay in lieu of notice.
On the evidence presented to FWA, Commissioner Bissett found
that it was reasonable to assume the Applicant had a BAC in excess
of 0.00% and that the employer was within its rights to send the
Applicant home.
However, Commissioner Bissett held that the Applicant had a
right to know when he was sent home that his employment might be
terminated. He should have been given an opportunity to respond to
the allegation so he could defend it or offer a reasonable
explanation.
Commissioner Bissett said: 'procedural
fairness requires that the employee be advised of the likely
consequences of their conduct so that they may take action to
defend themselves. This is not something to set aside without good
reason'.
It was held that the 'lack in
procedural fairness in advising the Applicant that his employment
may be terminated and the absence of an opportunity to provide
evidence that he did not have a BAC over 0.00% makes the decision
of the Respondent [employer] unjust'. Therefore the Applicant's
termination was considered unfair.
Accordingly, procedural fairness is
paramount and caution must be taken before a decision is made to
terminate an employee summarily - even where it is found that an
employee was under the influence of alcohol at work.
Employer not entitled to claw back mistaken redundancy payment
to executive
The Victorian Supreme Court has ordered that a redundancy
payment mistakenly paid to an executive by an employer cannot be
claimed back.
In the case of TRA Global Pty Ltd v Kebakoska [2011] VSC
480, an employer mistakenly believed the former executive was
covered by an award and was therefore entitled to a redundancy
payment to the value of $27,000.
The employee relied on two defences, with Justice Osborn
concluding that it was 'inequitable' for the employee to 'bear the
cost of expenses which would have been covered by unemployment
benefits if the mistake had not been made'.
Accordingly, the employer was unsuccessful in seeking
reimbursement from the former executive.
Watch this space:
- Victoria has called on the Commonwealth government to postpone
Occupational Health and Safety harmonisation (currently set to
commence on 1 January 2012). The Assistant Treasurer, Gordon
Rich-Phillips, said the Victorian government supports the
harmonisation of OH&S laws, but asked the Commonwealth to defer
the implementation of the national OH&S harmonisation for 12
months. The proposed postponement has also received support from
Western Australia.
- Work Safe Week runs from 17 October to 27 October 2011 in
Victoria. Work Safe Week is an annual initiative by WorkSafe
Victoria that gives Victorian businesses the opportunity to learn
about the latest health and safety advancements in the workplace.
WorkSafe Victoria holds a number of events throughout Melbourne and
regional Victoria, which you may register to attend by accessing
the WorkSafe Victoria website.
- An appeal against proposed amendments to the General Retail
Industry Award has failed. The appeal was lodged by the Shop,
Distributive and Allied Employees Association
(SDA) and rejected by the full bench of Fair Work
Australia on 14 September 2011. The appeal sought to prevent
proposed amendments to the Retail Award that would allow employers
to hire secondary school students on a casual after-school shift
for a minimum of 90 minutes. The SDA has now appealed to the
Federal Court.
[1] Road Safety Act 1986 (Vic)
s 52(1A)