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Welcome to another workplace update…

 

Dude, Where’s my car? Employee argues losing private use of a company car meant role was not substantially the same

An employer who made an application for the variation of its obligation to pay redundancy pay under the Fair Work Act 2009 (FW Act), has failed to convince the Fair Work Commission (FWC) that it should reduce an employee’s redundancy payment from 13 weeks down to 6 weeks even though they offered him another job on the same pay. This came after the Deputy President of the FWC found that although they offered the employee a role that was “substantially the same”, the loss of the private use of a company car was significant and thus the new role could not constitute “other acceptable employment” within the meaning of the redundancy provisions of the FW Act.

The FWC estimated that the employee’s annual commute to and from work would have totalled up to 20,000 km. Thus, ‘in terms of saved petrol costs and private vehicle wear and tear, this represented a substantial financial benefit for [the electrician] while he was employed by [the employer]… He now bears those costs himself… having not been provided with a motor vehicle in his new role’.

Watters v Electrical Pty Ltd T/A Watters Electrical v Bill Harold McLaughlin [2024] FWC 398

Safe Work Australia calls for better management of “psychosocial hazards” in the workplace

The call from Safe Work Australia (SWA) for better management of psychosocial hazards follows an escalation of mental health compensation claims as national data shows an increase of almost 37% in mental health conditions for serious workers’ compensation claims from 2017-18 to 2021-22. A psychological/psychosocial hazard can include anything at work that may cause psychological harm. Of course, this will look different in each industry and is dependent on the type of work undertaken. Whilst stress itself is not an injury, psychological harm may include depression, anxiety, post-traumatic stress disorder or sleep disorders. Examples of factors which increase the risk of psychological hazard include things ranging from excessive workloads, bullying, or traumatic events, through less obvious factors such as low job control or lack of role clarity and poor organisational change management.

Psychological risks must be assessed, managed, and then monitored in the same way as the risk of physical injuries as required under work health and safety (WHS) legislation. This is as WHS legislation places express obligations in particular on persons conducting a business or undertaking (such as employers), as well as directors and managers. These obligations, if not met, expose all to criminal charges for breaches especially at a time where there is increasing focus by regulators on managing psychosocial hazards.

Psychosocial hazards | Safe Work Australia

Compensation for WFH employee after resisting forced office return

The FWC awarded $5,000 compensation to an employee who claimed she could not return to the office after a work from home (WFH) arrangement for almost 10 years due to parenting arrangements, while her employer maintained that the arrangement began only following the pandemic.

The employee had been working at least 35 hours per week with occasional visits to the office when her employer decided that her duties could be performed in the office over 20 hours three days per week.

Ultimately, the employee refused the arrangement due to the lack of details of the changed pay and related consequences, the financial strain of reduced work as well as due to the need for alternative arrangements for the employee’s children’s schooling.

The FWC found that the WFH arrangement had predated the pandemic and in fact, the employee was not made redundant but rather was unfairly dismissed. Challenges with managing office returns post WFH arrangements must be carefully managed to minimise employer exposure to legal claims.

Mrs Lisa Grundy v Simsai Construction Group Pty Ltd [2024] FWC 274

Employer sacks employee over misunderstanding because of her Scottish accent: FWC says dismissal lacked a valid reason

A supervisor thought she heard an employee with a thick Scottish accent saying, “I quit”, where the employee asserts she said in fact said “this is shit”. The consequences of the supervisor’s misunderstanding was substantial as the FWC found that the employer lacked a valid reason for subsequently dismissing the employee.

The supervisor maintained that the employee had resigned, however the employee asserts that ‘[a]t no time during the conversation I had with [the supervisor] did I say I was resigning.’

The FWC considered the fact that mishearing the employee had become ‘something of a standing joke in the office’ and that it was ‘highly likely that [the employee] was misheard.’

Despite the employee’s unprofessional conduct, the FWC did not find that the conduct constituted gross and serious misconduct. As a result, there was not a valid reason for the dismissal which was therefore harsh, unjust, and unreasonable. Commissioner Durham reserved her decision on compensation in order to seek further information about the employee’s efforts to find another job and her income since the dismissal.

Audrey Campbell v Gold Tiger Logistics QLD Pty Ltd [2024] FWC 913

FWC reinstates sacked employee after 15 safety breaches

The FWC has reinstated a sacked employee following his dismissal for 15 safety incidents over 16 years, 4 instances of misconduct, and the final incident which included:

• an incident where he was allegedly travelling at unsafe speeds in a work vehicle;
• driving in a manner that caused the vehicle to slide in an uncontrolled matter in a safety critical environment;
• failing to tell his supervisor whether he was the driver (when questions were asked about the incident and who was driving); and
• failing to report the incident himself.

The FWC was not satisfied that the employer had actually driven at an unsafe speed or that the vehicle had momentarily slid as a result of his error rather than the slipperiness of the recently watered road based on conflicting witness evidence.

The FWC determined that the employee breaching policies and procedures regarding reporting incidents did provide the employer a valid reason to dismiss him, but the fact that the incident was witnessed and reported by the supervisor was ‘a very different scenario from an incident that was not witnessed by anyone (other than those directly involved) and not reported’. As such, the FWC considered the employee’s failure to report at ‘the lower end of the scale’. Therefore, it found the dismissal was harsh and unreasonable.

The employer argued that the relationship with the employee was unsalvageable. Rejecting this contention, the FWC ordered the employee’s reinstatement plus reimbursement for lost pay (halved on account of his failure to report the incident).

Employers should be aware of this in light of the grounds for dismissal and the risks around terminated employees bringing a claim, even in circumstances where there have been several safety breaches.

Joe v Sleiman v Illawarra Coal Holdings Pty Ltd T/A South32 (U2023/4076)

 

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

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