FCW Lawyers

Workplace in-Brief: Edition 6


Workplace in-Brief: Edition 6

A summary of the week’s critical news, developments and case updates that affect your workplace.
25 September 2020 by Andrew Douglas

News and developments

Case updates

COVID-19/JobKeeper Update

The Federal Government has made new Regulations extending JobKeeper as described in past webinars (see attached link to recent article). This includes the IR tools for legacy employers (greater than 10% decline in revenue) and increase in notice to 7 days for enabling directions (from current 3).

The Schedule X now found in 99 Awards, allowing 2 weeks unpaid pandemic leave and permitting employees to take annual leave at half pay, will be extended for around 71 Awards until the end of March 2021 – if there are no objectors by this Friday (25 September) – see link COVID-19 Award Flexibility Schedules [2020] FWCFB 4986 (16 September 2020)

The Federal Government has issued a draft COVID-19 Model Code of Practice ( see link draft COVID-19 Model Code of Practice) that imposes obligations on PCBU’s (employers) to consult, consider and respond to COVID risks over and above normal risks. It requires a co-ordinated and co-operative response with shared duty holders and an open exchange of information. It is a helpful guide, extending on from the SafeWork Australia COVID-19 Information for workplaces. Not all good news I’m afraid. Even if not adopted by a jurisdiction (and none have yet) it is compelling evidence of what is reasonably practicable for regulators. If adopted by a jurisdiction, it is presumed to be reasonably practicable. So please read and adjust what you are doing to comply.

Unfair Dismissal: Failed personal relationships and reinstatement

When lovers quarrel, civility is lost.  In Ray v Priority ERP, we are invited into the sadness and passion of a relationship collapsing into grotesque name calling.  It leads to Ms Ray ceasing work, and the loss of her relationship with the director of a small business, Mr Unsworth. The sordid facts are irrelevant to all but marriage counsellors, but the lesson is very clear. People in intimate relationships should never report to each other. In this case, although the employment was taken to have been terminated by the employer, the remedy of reinstatement was not available because of their reporting line and broken relationship.

In many financial services businesses ‘love contracts’ exist requiring disclosure of relationships, separation in reporting lines and deliberate planning to prevent conflict. This avoids the loss of employees and clients when relationships fail.

Unfair Dismissal: When safety and the FWA ‘collide’

The FWC recently heard a case involving a truck drivers aggressive and dangerous driving. The case highlights the responsibility of our employees at work but away from the work site. In Young v Cookers, Mr Young reported an incident in particularly colourful language to his boss. His boss was travelling with his partner and young child in his car. His boss, Mr Rowland repeatedly asked him to temper his language, but Mr Young didn’t. The objective evidence (supported by a dash cam on another Cooker truck) revealed Mr Young drove in a threatening and dangerous manner.  He may have been cut off inadvertently but his deliberate course of threatening and dangerous driving directed at the person he believed cut him off, posed a risk to the target of his rage and the public.

His claim of unfair dismissal was rejected. Not only because his conduct was dangerous but also, in the aftermath, his language to Mr Rowland was not excusable.

Lessons for employers are straight forward. When a person is at work, how they behave towards third parties (not clients or employees) is still relevant where they breach safety law. Remember all employees must exercise reasonable care to prevent injury to others under safety law. At common law they must always act in the best interest of the business. His behaviour created an imminent risk to health and safety of another person and members of the public. It also caused risk to the reputation of the business (see definition of serious misconduct FWR 1.07). There is a difference between occasionally swearing and swearing offensively in front of third parties in breach of a direction to cease.

Social Media, Defamation and online bad behaviour

Although Facebook, and other social media platforms, will not unmask anonymous sites that defame people, they will and must through a Court order. Once the identity of the person defaming is known, litigants have had great success in using defamation law to get redress (see Chen v Lok $750,000-$550,000 of which was economic loss and goodwill, Bolton V Stoltenberg General damages of $100,00 and aggravated damages of $20,000).

In the most recent case of Webster and others v Brewer, Gleeson J awarded $875,000 to the National MP, Dr Anne Webster, her husband and daughter. Why is this important? Because people feel free, particularly after a few red wines, to post shocking things about their employer and co-employees. Increasingly, particularly at a senior level, employees are looking to defamation law to protect their brand.

Employers must have clear rules round social media use both during and outside business hours. Not limiting the rules to employer hardware. Defamatory conduct is serious misconduct. If the person defaming is in a management role, the employer may also be liable. Are you insured?

Industrial Relations – FWC and replaced agreements

It is not uncommon for disputes under EA’s to be live when a new EA is approved by the FWC. A strong Full Bench of the FWC in Simplot v AWMU made it clear the old EA created accrued legal rights but not a dispute that could be heard in the FWC. The accrued legal rights would need to be fought out in a Court. An expensive place for Unions and act as a disincentive to the common Union tactic of notifying disputes around the time of when agreement is being reached (where the Union has been sidelined).