Cornwalls' E&IR team news
Next month the E&IR team will be saying goodbye to trainee
Josh Gurgiel, who will be rotating into our Commercial Property and
Banking & Finance teams, and E&IR will be welcoming Nick
Amore.
This month both Jane O'Brien and Clare Hudson celebrated their
birthdays, and Sally Bast celebrated one year with the firm. Happy
birthday and well done ladies! Next month Sally will be attending
the Supreme Court of Victoria to be admitted to practise law; from
all the team - good luck and congratulations on all your hard
work!
Incompetent Handling of Harassment Claim Costs Company
A worker has been awarded workers' compensation for stress after
the Victorian County Court found his employer's handling of
harassment allegations was dilatory and inappropriate. The worker
alleged there were several episodes during the course of his
employment that he found stressful, two of which are of particular
interest from an employment perspective.
The conflict of interest incident
The employee, a credit control manager, was questioned in late
2004 regarding attempts he had made to help a struggling client by
referring him to a 'multi-level marketing company' the employee was
involved with. The employer later developed a conflict-of-interest
policy in January 2005 and issued the employee
with a final written warning. The court
found the employer's actions to be unreasonable because they
effectively disciplined the employee for breaching a company policy
that did not exist at the time of the alleged violation.
The sexual harassment allegations
Further stressful events for the employee were the allegations
of sexual harassment made against him and the consequential
investigation. Despite the employer's own policies stating that
complaints of harassment were to be resolved as close as possible
to when they occurred, the employee was called upon in December
2005 to face a complaint of sexual harassment alleged to have
occurred in March 2005. Hence he was questioned some nine months
after the alleged event.
The employer concluded that he had likely harassed the female
employees, notwithstanding there was little evidence for such a
conclusion. The employee was later confronted with allegations of
harassment made by several other female staff, and the employer
told him it 'had formed the view' that he had engaged in a 'pattern
of behaviour…consisting of uninvited and unwanted physical contact
with female staff members'.
The employee was eventually dismissed
after allegations of stalking were made against him. The company
terminated his employment before the conclusion of an independent
investigation.
Judge Parrish found these actions were again unreasonable
because:
- the employer had acted contrarily to its own policy;
- there was no other witness to the alleged harassment at the
Christmas party, and the partner of the employee asserted that no
such action had occurred; and
- the employer confronted the employee about further allegations
of harassment in a letter to the employee, advising that each of
the allegations was found 'more likely than not' to have occurred,
and the employer acted with inappropriateness in having formed a
view about such allegations.
For
employers
In determining that the employer's
conduct was unreasonable in each of the above instances, the court
awarded the employee workers' compensation for stress.
This case highlights the potential
minefield that can face employers when confronted with allegations
that an employee has been sexually harassed by his or her
workmates. Ensuring that an appropriate policy is in place and
following the letter of that policy is an employer's best defence
in such situations.
The Skype's the limit
Background
In a landmark victory for 'social networkers' across Australia,
a landscape architect was recently awarded $171 (less applicable
tax) by Fair Work Australia (FWA) for an unfair
dismissal action brought against his former employer. The worker
was terminated one day before he was scheduled to finish working
for the company, having tendered his resignation three weeks
earlier.
The employee claimed he was unfairly dismissed by his employer,
who terminated his employment based on allegations of 'theft of
hundreds, if not thousands of dollars worth of paid time' through
his excessive use of the company's internet for personal reasons
during work hours.
The company claimed the employee had recorded over 3000
transactions on an internet chat line (not devoted to landscaping)
in the three months leading up to the termination, and this had
significantly affected his productivity and amounted to conduct
that justified early termination. However, no evidence of such
conduct could be provided by the company at the hearing.
The decision
It was found that the employer had failed to discuss the
allegations with the employee prior to issuing him with a letter of
early termination, and had not provided him with an opportunity to
respond to these accusations. FWA found that the employer's conduct
amounted to a 'harsh, unjust or unreasonable' termination of the
employee's employment.
FWA did not rule out the possibility that excessive personal
internet use might be grounds for dismissal.
For employers
This decision does not give employees an unmitigated green light
to 'Facebook', 'Skype', 'Tweet', 'Chat' or indulge in any other
internet-related verbs. Any conduct that may be seen to waste
employers' resources to the point of 'theft' should not be
tolerated by employers and should be disciplined accordingly.
However, as emphasised by FWA in this instance, such allegations
must be supported by adequate evidence.
The full court in the federal court decision of Edwards v
Giudice [1999] held that if a 'termination of employment is
based on misconduct of the employee it must be determined that the
conduct occurred'. Employers should not make damning accusations or
terminate a person's employment unless they have sufficient means
by which to support the alleged grievances.
Where an employee's behaviour is seen to warrant termination, an
employer should still consult the offender and offer them an
opportunity to respond to the allegations laid upon them. Of
course, consulting should be done within reason; if an employee is
found to be selling counterfeit Japanese Yen from within the
business premises, an employer should not be expected to sit them
down for a cup of tea and a casual chat. Having said this, in the
FWA case of Said v Jokar [2011], Ashbury C stated that
even if an employer has reasonable grounds for believing that an
employee has engaged in serious misconduct worthy of termination
without warning, the matter may still require some discussion with
the employee, 'particularly where the facts in question…are capable
of some other explanation'.
Conclusion
The employer may have avoided culpability in this matter had he
offered the applicant an adequate warning and personally discussed
the issues surrounding his employment. It is advisable for
employers to have written policies in place regarding the use of
the employer's IT systems and setting out the employer's
expectations regarding personal use of these systems. In this case,
if the employer had have had a written policy restricting the
personal use of its IT systems and could demonstrate that the
employee had breached that policy, the employer would have been
much better placed to successfully defend the unfair dismissal
claim.
Hence, this decision serves as a reminder that employers should
take the necessary steps to comply with all the requirements of
s387 of the Fair Work Act 2009 - including, for example,
notifying the employee of the reason for the dismissal, giving the
employee an opportunity to respond (where appropriate), and warning
the employee of possible dismissal due to unsatisfactory
performance. Following these steps will help ensure that a
dismissal cannot be deemed as 'harsh, unjust or unreasonable'.
While the employee was not able to attend the hearing to
celebrate this monumental triumph over his employer, his sister
appeared on his behalf via Skype. One assumes she will pass on to
him whatever remains of the $171 after tax, thereby ensuring that
justice has prevailed.
There's no (work)place like home
Increases in working from home
If 'home is where the heart is', then employers need to start
monitoring their workers' cardiac health with greater scrutiny. In
today's globalised business environment, an increasing number of
large organisations are choosing to utilise home-based work areas
to lower their overheads and provide for employees who prefer to
work from the comfort of their own homes. However, this arrangement
can have adverse consequences for employers.
Recent case - injuries sustained at
home
In a recent hearing in the Administrative Appeals Tribunal
(AAT), a Telstra employee successfully obtained
financial compensation from her employer for injuries sustained
while working at her home office in Brisbane.
The employee fell down the internal stairs of her townhouse on
two separate occasions between August and October 2006, and
consequently suffered both physical and psychological damage. The
main issue in contention in the appeal was whether the injuries
arose out of (or in the course of) her employment with Telstra.
The decision
The AAT held that these injuries were sustained while she was
performing work-related duties, and ordered Telstra to pay for her
medical costs and expenses, as well as compensation for her loss of
income.
In reaching its decision, the AAT cited the High Court decision
of Hatzimanolis v ANI Corp Ltd [1992], stating that 'an
injury is more readily seen as occurring in the course of
employment when it has been sustained in an interval or interlude
within an overall period or episode of work, [rather] than when it
has been sustained in the interval between two discrete periods of
work'. Both falls suffered by the worker were seen to have occurred
during 'intervals' that formed part of continuous work periods, and
therefore constituted 'injuries' within the meaning of s4(1) of the
Safety, Rehabilitation and Compensation Act 1988.
For employers
This decision should raise some alarm bells for employers. It
indicates that, while some employees might perform their work tasks
from the privacy of their own homes, their health and safety is
still the responsibility of their employer.
The Occupational Health and Safety Act 2004 states in
section 21(1) that 'an employer must, so far as is reasonably
practicable, provide and maintain…a working environment that is
safe and without risks to health'. While the High Court in
Hatzimanolis v ANI Corp Ltd acknowledged that employers
should not be held accountable for injuries sustained by employees
who choose to slide down staircase banisters on roller-skates while
drinking boiling hot tea and carrying scissors (albeit not quite in
those words), it confirmed that, in the absence of such gross
misconduct, it is the employer's duty to ensure the home office is
a safe working environment.
Employers cannot protect their employees against every possible
danger inherent in an office, but they can implement certain
measures to maximise their safety. For example:
- conducting thorough inspections of their employees' home
workstations to ensure these areas comply with occupational health
and safety standards; and
- conducting safety training to educate employees on the dangers
inherent in their specific work environments.
By exercising the appropriate caution and managerial prudency,
employers can help ensure that employees who work from home remain
protected from harm. After all, they might be out of sight, but
they should not be out of mind!
Workplace Relations Highlights (Watch this Space):
- The Federal Magistrates Court has declined to hear an adverse
action claim because the dispute the court was asked to resolve was
broader than the one initially taken to Fair Work Australia
(FWA) for conciliation. The court said the union
bringing the claim needed to return to FWA to specifically deal
with the additional issues in dispute, before the claim could be
escalated [CEPU v Active Tree Services Pty Ltd [2011] FMCA
535].
- The Federal Magistrates Court has issued a costs order against
an employer and supervisor held to have breached the Racial
Discrimination Act 1975 when the supervisor told a 'weak and
unfunny' racist joke in an Aboriginal worker's presence. The
company and the supervisor were ordered to pay half the labour hire
worker's court costs in addition to the $5000 damages they were
previously ordered to pay. However, the worker has to pay the costs
of three employees he made unsuccessful claims against, after he
failed to prove there was systematic discrimination in the
workplace [Trapman v Sydney Water Corporation & Ors (No
2) [2011] FMCA 533].
- The Fair Work Ombudsman (FWO) has been
criticised for its heavy-handed approach to a small business owner
accused of failing to provide payslips for a 6-week period. The
breach took place within a month of the Fair Work Act 2009
(Act) coming into force and FM Lloyd Jones said it
was not surprising that a small, under resourced owner-operator
business was not fully conversant with the provisions of the Act.
FM Lloyd Jones said the appropriate approach would have been to
provide suggestions on how the business' systems could be improved
to meet the obligations under the Act [FWO v Ballina Island
Resort Pty Ltd & Anor [2011] FMCA 500].
- Queensland's State Industrial Relations Minister has hinted
that Queensland may follow in Victoria's footsteps and introduce
gaol terms for workplace bullies. A special reference group has
been set up to examine how workplace bullying is being dealt with
in other parts of Australia and internationally. No legislation has
as yet been drafted but, if it comes to pass, employers in this
jurisdiction should keep themselves informed of how this impacts
their workplace.
- FWA has reinstated a truck driver who was dismissed after
receiving three warnings for alleged unsafe driving and site safety
breaches. The warnings were issued following his refusal
to complete safety competency tests and paperwork while acting as a
delegate of the TWU. The Commissioner took into account the
driver's brief but controversial history as a delegate, his
prior good driving record, the doubts surrounding his alleged
speeding and the driver's remorse. The Commissioner said he would
not 'wish by this decision to be taken to in any way be undermining
the [company's] approach to safety issues at work', which he
regarded as sensible and appropriate.