Employment Law Update for employers

Workplace Law is ever-changing whether through decisions of the courts and commissions or changes to the many pieces of State and Federal legislation that regulates the relationship between Employee and Employer. We’ve put together this fortnightly update to assist by giving you easy to understand snapshots of some of the recent changes that affect Employers.

Security guard dismissal ‘harsh and unjust’

 

The Fair Work Commission (FWC) found a security officer’s dismissal ‘harsh and unjust’ after he was found napping in his car during an overnight shift. Including because a case of chickenpox contributed to the employee sleeping on shift.

The casual security guard employed by MSS Security was working for client Sydney Trains when he was caught by his colleague asleep during an overnight shift. Despite typically working in pairs, the security guard requested to sit alone for that night shift in his own car to avoid sitting next to his colleague, whose children had chickenpox – the dismissed security guard had been concerned to avoid catching it himself and infecting any of his 5 children.

The FWC found that MSS Security had a valid reason for dismissal but still found it unjust as there was no evidence the ‘unique circumstances’ that led to him sleeping had been taken into account. Specifically, that sleeping on an overnight shift is a possibility when sitting for such long hours overnight, the risk is mitigated working in pairs as one can wake their partner up, and this was not considered when dismissing.

MSS was ordered to pay the SSO officer five weeks pay plus super.

 

Employee awarded compensation after taking it too far at a work Christmas party

The FWC has awarded an employee nearly $10,000 compensation after his dismissal following a work Christmas party, where he jumped in the pool at the mine site at the accommodation village naked in front of guests and employees, breaching the site’s nude swimming prohibition.

The cleaner told his employer that he jumped having been ‘egged on’ by fellow mineworkers, claimed he could not remember taking his clothes off before entering the pool due to the alcohol he had consumed, and asserted he woke up in wet board shorts. Whilst an HR incident report stated ‘several individuals’ saw the cleaner enter the pool naked, none gave evidence at the hearing or provided written statements.

The FWC found that due to the ‘poor evidentiary case’, it was hard to conclude that the alleged conduct occurred and so, the dismissal was thus unfair and the cleaner was awarded $9,540 compensation.

 

FWC orders WFH rights for new mother

 

The FWC has ordered an employer to allow a mother of two children to work from home for two days per week. Reapit Employment Services Pty Ltd had implemented a requirement that employees attend its Sydney-based office twice a week. This requirement extended to the mother, one of whose children had special needs.

In making its decision the FWC considered the mother’s daily 1.5 hour each way commute to her CBD workplace, making her home later to tend to her children, and the effects to her routine and her child’s behavioural challenges likely becoming more aggressive, having previously worked 100% from home

Despite the employer’s arguments the FWC questioned the degree of impact on its broader culture by the employee working from home two days a week.

 

‘Hurt feelings’ not considered bullying

The FWC has disregarded a stop bullying claim against a body corporate secretary who sent numerous confronting and demeaning emails to the building manager of a Darwin apartment complex.

Some of the excerpts of the emails included “It’s not my job to do your job (even though it feels like it sometimes) & clearly others don’t notify you of stuff, maybe they, like me, wrongfully assume it will get noticed by someone in the caretaker team.”

Whilst the FWC criticised the secretary’s behaviour, deeming it assertive, demanding and that it demonstrated characteristics of a narcissist. Ultimately, it found the communications did not amount to bullying as there was not a risk to any worker’s health and safety, a matter about which the FWC needs to be satisfied to make a stop-bullying order.

 

 

We hope you have enjoyed this fortnight’s employment law news. See you next fortnight!

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