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Workplace In-Brief: 3 September 2020

Andrew Douglas


JobKeeper and Consultation – the big stretch

The most recent case on JobKeeper is startling. An employee, which the Fair Work Commission agreed could no longer be usefully employed, could not be made redundant. Commissioner Bissett, who recently wrote the challenging decision of NTEU v Deakin, noted that the failure to consult meant the termination was not a genuine redundancy as effectively who knows what may have come out of the consultation (others may have agreed to lesser hours-not a relevant test for redundancy) and the Jobkeeper scheme had been announced but not enacted or fully understood and should have been considered. Like the Deakin decision, this case, Browne v MySharedServices may not be the most reliable law but points to the importance of consultation and considering actual law designed to prevent redundancies and it seems even potential law.

JobKeeper 2

It has passed both houses of parliament in the terms we described last week but is not law yet. We will keep you up to date.

Employment and the perfect PIP and the flawed investigation

It is not uncommon to struggle with a long-term employee whose conduct, attitude and performance are wanting. But how do you manage it? The issues are small, like untidiness, bluntness and disinterest. The answer is an appropriately structured Performance Improvement Plan, good follow up and fairness. It takes time but it works. Exactly these issues arose in Hogendorn v Nokia and Commissioner Hunt commended the process and upheld the termination following a recent final warning.

How do you manage destructive gossip? Every organisation struggles with it. How not to do it was seen in the recent case of Yang v FCS Business ServicesAt a two-day Christmas party, the owner Mr Shen asked his entertainment committee how the party was going and was told;

Applicant had suggested that the party had been organised at a house with a swimming pool to allow Ms Maggie Yan an opportunity to strip for him to make him happy. Further, Ms Tao said that the applicant had said that Ms Maggie Yan was having an affair with Mr Shen, and that the applicant had also said that another employee had been brainwashed by Mr Shen.

Mr Shen challenged the Applicant, she denied it and said “call a meeting I want to confront my accusers”. A meeting was called, no one admitted they accused her, so a secret ballot was held where two out of 15 identified her. The applicant was very distressed and subsequently signed a prepared (by Mr Shen) resignation. In truth she had no choice. The correct path was to document the allegation, investigate it and then put what reliable evidence of the allegations to her. If there is evidence she did say these scandalous allegations – it could be wilful and deliberate behaviour inconsistent with her contract Reg 1.07 FWR ‘serious misconduct’. It could be a valid reason. Next question is whether is harsh, unjust or unreasonable s.387 FWA

When IR bumps into Discrimination Law – carers responsibilities

Many Awards and EA’s permit an employer to require employees to work changes in their rosters to meet the business’s needs. In Farnden v ColesColes sought to have Ms Farnden, a team leader in the Bakery area, to work extra weekend shifts. She said no as she had responsibilities to care for her child. This included taking her son to soccer on Sundays and being a soccer first-aider. Coles needed her to work to improve the profitability of the Bakery area. She was the only person at the same level (and they all had children) to not work these shifts. Ms Farnden did not explore other ways to manage her attendance. So, although she had carer responsibilities, she offered no suitable reason why her husband could not assist. The focus of the Commission was on her personal circumstances. Looking at why it is carers responsibility and what are the reasonable adjustments a family can make is critical. Any roster change should involve careful consultation with each affected person.

Safety and Work Experience

A work experience student is a ‘worker’ under WHS law, an ‘other person’(s23 duty) under Victorian OHS Act (Similar s21 OSH Act WA). That means an employer (PCBU) must do everything reasonably practicable to ensure the safety of that work experience student. If the student is undertaking work, they must be inducted into the site, the location and the work, trained and competent in the work including hazard detection and supervised to prevent injury. In WorkSafe Qld v Mottram and Lewden Pty Ltd, the director Mr Mottram was found guilty of failing to inspect the site to ensure it was safe, as was the company for failing to train and supervise the student. We forget that non-employees are our greatest risk on site.

Workers’ Compensation and mishandled complaints

It is not unusual for employees to raise legitimate safety and employment concerns that drive an employer mad. Not everything can be fixed straight away. Not everything is a severe risk requiring an immediate control. But treating someone poorly for raising the concern is a sure-fire method to have a workers’ compensation claim accepted and has all the elements of adverse action. In Mirow v Suez , Mr Mirow raised issues about inadequate air conditioning in trucks with excessive heat from engines, payment of wages and workplace flexibility after birth of his child (possible discrimination claim as well) and was found to be treated poorly. His development of a stress related claim could not be defended as clearly there was not ‘reasonable management action.

Contractor Management – Part 4 ‘Pulling it all together’

You cannot contract out of liability. You can only contract out a job, but your safety liability remains. That liability can be severed (or carved out), where you are reasonably satisfied the contractor is doing everything ’reasonably practicable’ to provide a safe working environment and system. Once you are satisfied the contractor is competent to do everything reasonably practicable, you must:

  1. Document the role and responsibility
  2. Induct them to the site, location and job
  3. Comply with safety law around documentation of job (SWMS, Shared risk assessment when shared site)
  4. Develop with the contractor the risk assessment-  you can rely on its expertise where not your expertise. However, where you know of a risk (like working at heights), have a residual responsibility or have expertise, you must apply it in reviewing and approving the risk assessment tool.
  5. Manage the contractor not supervise
Andrew Douglas


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