Latest news in the workplace
Dangers of the work Christmas party – celebrating safely
With the Christmas season upon us, it is important to remember that whilst celebrating end of year work Christmas parties, employer health and safety duties still apply. As a result, employers may need to discipline employees, and may themselves be exposed to legal risk, where there is a sufficient connection between an employee’s conduct and their employment. This can exist even at a party outside of work hours, at a separate venue, and potentially where some employees continue celebrating into the night after official festivities end.
This is particularly important given employers now have a positive duty to eliminate sexual harassment which will likely extend to these events as well. As a result, employers should:
- remind employees leading up to the Christmas party that it is a work event and standards of conduct and behaviour still apply and will be enforced;
- remind employees to familiarise themselves with the employers’ policies and procedures prior to the event, and train them in the policies;
- consider putting in place controls to monitor alcohol consumption and enforce the responsible service and consumption of alcohol;
- monitor hazards, such as wet floors, to inappropriate or aggressive behaviours. This may be assisted by having a designated sober staff member or an external venue manager to monitor and report on activities; and
- arranging transport home from the venue.
All in all, Christmas parties are more enjoyable when celebrating safely and where you do not have to seek urgent legal advice the next day.
Nursing home ordered to pay employees for time spent doing covid-19 tests
The Fair Work Commission (FWC) has found that nursing home staff should have been paid for time spent taking rapid antigen tests (RATs) prior to their shift’s start.
After COVID-19 was responsible for 16 deaths, management of the Jeta Gardens nursing home mandated RATs and required staff to arrive 15 minutes early to a designated testing area as a condition of entry. Jeta Gardens argued that this was not work as it was not a task or duty referred to in their enterprise agreement. The FWC rejected this argument, finding that it was satisfied that “the direction required employees to be at a certain place, undertaking a certain duty, at a particular point in time.” Accordingly employees were entitled to be paid for this time.
Childcare worker falsely accused of abuse awarded compensation
An Early Childhood Teacher has been awarded $33,500 in compensation after being dismissed for false allegations. The teacher was asked to attend a meeting with no notice, no warning of the reason for the meeting and without the opportunity for a support person. The teacher was then told just that complaints had been made against her, and then in a subsequent without prejudice meeting was informed that if she did not resign by the end of the day a disciplinary investigation would commence.
The teacher was later suspended and informed of allegations of abuse involving tying children’s hands together, as well as of the deletion of company files from her work computer, failing to provide adequate advice to parents, and of inappropriate and disrespectful behaviour to children. The teacher was eventually dismissed, arrested by police and had her teacher’s accreditation suspended.
The FWC found that the allegations were founded purely on suspicion. Further, that “the employer made erroneous findings of serious misconduct that not only destroyed the applicant’s employment but caused significant personal, financial, reputational, and career damage” and that the employer had made a “litany of mistakes” in the lead up to dismissal.
Jenny Wood v Amigoss Preschool and Long Day Care Co-Operative Ltd [2022] FWC 2925 (3 November 2022)
Employee’s unfair dismissal claim denied by the FWC because he failed to disclose a medical condition
The FWC has found a security guard was not unfairly dismissed after the employer failed to consider an undisclosed acute anxiety disorder. The security guard was dismissed after a pattern of behaviour evinced a clear disregard for his employment obligations. This included the him falling asleep on the job, blocking his supervisor’s number so he could not be contacted, leaving the business premises unattended and unsecured, allowing unauthorised persons to view CCTV footage without client approval, and being the subject of intimidation complaints by colleagues.
In his unfair dismissal claim, the security guard argued that the dismissal was disproportionate to the misconduct and that his former employer had failed to have regard to his undisclosed anxiety condition. The FWC held that the dismissal was valid, as his behaviour was inconsistent with the employers’ policies and procedures, and therefore in breach of lawful and reasonable directions. further, that the employer could not consider a pre-existing medial condition that the employee had failed to disclose. The FWC went on to state that the nature of the security guard’s work, as well as the written policies of the employer, required notice of such a condition to be given.
