News and developments

• COVID-19 restrictions update
• Wage theft
• NSW draft Code of Practice for managing the risks to psychological health

Case updates

• A wronged person issues proceeding in the least advantageous jurisdiction
• History of misconduct
• Safety and adequate facilities
• No consultation and no job

COVID-19 Update

Big week in Victoria as stage four continued with an austere road map ahead.

Click to view the updated restrictions summary for each State and Territory to reflect the latest changes (accurate as of Thursday 10 September 2020).

Wage theft

Wrongful underpayment of employees, falsification of records and failure to keep records will be a crime in Victoria as of 1 July 2021, and passed Qld Parliament on Wednesday (no date for when it becomes law at this stage).

Organisations face fines up to approximately $1m, and individuals up to $200k and a maximum of 10 years jail. In Queensland this could be 14 years if fraud is involved.

NSW draft Code of Practice for managing the risks to psychological health

The draft Code of Practice is not mandatory for employers to apply, but Courts and regulators will use it to consider state of knowledge when looking at reasonable practicability.

There are two main work-related stressors:

1. Frequent but low to moderate levels of stress e.g. too much work, leading to burnout
2. Infrequent but highly stressful events e.g. bullying or harassment

The draft Code provides a hierarchy of controls for psychological risks:

1. Identify psycho-social risks:
   • considering sources of risks (for example organisation structure, nature and type of work, characteristics of workers etc)
   • consulting with employees
   • Review available information
   • Look for trends
   • Observe work activity
2. Undertake risk assessment – senior leaders should also be involved in this process, and relevant workers should be consulted to understand the extent of the risk
3. Implement controls, for example:
   • ensuring sufficient staff are rostered
   • setting achievable performance targets
   • implementing policies and procedures for OHS, bullying and harassment, grievances
   • All controls must be monitored and reviewed
4. Create culture when active reporting of psycho-social hazards and they are escalated to appropriate person as soon as possible

What’s driven it?

• Less than 9% of NSW’s workplaces admit to having a systematic, integrated and sustained approach to dealing with mental health
• One in five businesses are aware of how to manage mental health issues
• Over 500,000 NSW employees report poor work or non-work-related mental health issues every year
• Concerning increase in psychological claims over physical workers’ compensation claims – in 2014-2015 increased by 53%
• Absenteeism, presenteeism, and workers compensation due to mental illness costs an estimated $2.8 billion in NSW every year

Case updates

A wronged person issues proceeding in the least advantageous jurisdiction.

In Edmonds v Holmesglen, Mr Edmonds was assaulted by his supervisor.

The supervisor grabbed him by his overalls, pulled them open and shoved unmarked exams down his front – rudely advising him he was to mark them. Mr Edmonds complained, then the supervisor treated him badly because of the complaint. Great adverse action claim. But Mr Edmonds didn’t make an adverse action, rather he claimed he was discriminated against him as an employee by subjecting him to detriment (s.18 Equal Opportunity Act 2010) after he complained.

He was awarded $25k, His workers’ compensation claim was also accepted. But an adverse action claim would have been a much bigger claim. He raised he had been assaulted, and Holmesglen permitted him to be treated badly because of making that complaint. It allowed him to be bullied in breach of the FWA and OHSAct. It was a big claim. But Holmesglen did not hit the jackpot-the premium impact of the workers’ compensation claim I expect is a six-figure sum.

History of misconduct

Often, we have an employee who is a repeat offender. The employee doesn’t respect the rules of the organisation and their behaviour impacts on others negatively. The risk is to move too quickly to terminate without properly investigating.

In Stephenson v Metcash, the employee’s actions were said to have caused an accident between two small motorised vehicles in a warehouse. His actions breached policies and procedures. But Metcash had no independent evidence of what occurred except for the notes from the two involved. The CCTV was not determinative. Metcash had to satisfy itself on the balance of probabilities he caused the incident. But no formal investigation was undertaken. He was reinstated even though he had several warnings for bad behaviour before.

Bartlett v Ingleburn Bus Service had similar facts but there was no doubt he did the final act leading to his dismissal. What the bus company took umbrage with was the swearing in the incident. FWC held that was not a basis for termination. But did hold that his continuous breaches and this particular breach, all of which breaches polices and  caused difficulty for other people in the business did justify termination. That is because his repeated behaviour left them with no trust and confidence that he would adhere to the rules of the bus company and he didn’t care about the impact on others. In both cases the employee had a history of poor performance and conduct. The two differences were:

1. In Ingleburn the final act was proven
2. In Ingleburn the prior warnings, taken with his final misconduct, demonstrated unequivocally that Ingleburn could have no trust and confidence that he would comply with company rules and he clearly did not care about the impact of his behaviour on others.

Safety and adequate facilities

A McDonalds franchisee suggested on Facebook that employees should not take their 10-minute toilet and drinks break under its EA.

In Queensland, where the case originated, WHRegs requires toilet access and workplace facilities (as do all other WHS states and territories) and in Victoria s.21(2)(d) requires adequate facilities that includes access to toilets and drinks see RFFW Union v Tantex

No consultation and no job

DP Reg Hamilton got in right in Hurley v Tex Onsite. A struggling airline restructured and retrenched the chief pilot as it had no planes for him to fly. There was no consultation but clearly no job. In a series of recent cases the requirement to ‘consult’ has been stretched beyond what many of us would expect. This is most recently seen in Browne v MySharedServices. But DP Hamilton paid one week compensation as there was no job and that is how long it would take to consult. He didn’t feel that consultation could conjure up some magical solution.