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Welcome to another employment law update…

 

Compensation for an employee who was dismissed after coming to work following a ‘big night out’

An employee who was dismissed for showing up to work following a night out has been compensated more than $5,400 after the Fair Work Commission (FWC) found there was ‘insufficient evidence to conclude that [the employee] was “under the influence of alcohol” when he started work… which would constitute a breach of [the company’s] drug and alcohol policy’.

The FWC Commissioner Crawford said that although it accepted the employer’s evidence that the employee had consumed up to 15 standard drinks the night before, it could not assume that he was impaired the following day. Further, it was certainly not in the employer’s favour that they failed to call a witness when they sent the employee home and allowed him to drive himself home.

Commissioner Crawford stated that if the employer had been able to establish that the employee was under the influence of alcohol (such as via expert evidence), ‘it is highly unlikely I would have found his dismissal was unfair’ due to the company’s clear drug and alcohol policy.

Employers should tread carefully then when dismissing employees for breaches of its drug and alcohol policies and ensure they are going off more than mere ‘email and hearsay evidence’.

Baydon Johnson v Faulkner Farming Pty Ltd (U2024/411)

Leave a message at the tone, but don’t fire me: FWC orders compensation for employee who was sacked via voicemail

The FWC has ordered that an employer pay $16,380 plus superannuation and the cost of “upskilling” to an employee who was dismissed without notice via a weekend voicemail.

‘[W]hilst it appears that the [employer] no longer required the job to be performed by anyone following the sales of the business’, the FWC Deputy President found it was not a genuine redundancy as it failed to consult him in line with obligations under the relevant Award. The employer also failed to provide notice and redundancy pay and did not put the dismissal in writing.

Employers should seek legal advice when navigating termination and redundancy related risks to avoid exposure to applicable penalties, compensation and costs.

Mr Jason Nuttall v The Trustee For Bm Supplies Unit Trust [2024] FWC 953 (12 April 2024)

Big Brother is watching you: Can employers monitor their employee’s use of their company laptop?

The Federal Court of Australia (FCA) has recently heard that an employer accessed an employee’s personal information, such as passwords to his private email accounts and his personal OneDrive and iCloud accounts, after the employee was suspended from his employment and was required to hand over his work laptop.

The employee claimed he received confirmation that his personal accounts had been accessed from the company laptop and that the employer sent him a letter containing information that only appeared in a private email. This information was ultimately used by the employer to dismiss him as it revealed he had been working on other projects in competition with the employer during company hours.

Generally, an employer may be able to monitor an employee’s use of a work laptop subject to limitations under the Privacy Act 1988 (Cth) (Privacy Act) and the Australian Privacy Principles (APPs) which cover the collection, use, disclosure, and storage of personal information. However, there are exemptions from complying with the APPs for private sector organisations when handling employee records (of both current and former employees) that are directly related to the employment relationship. ‘Employee record’ includes a record of personal information (other than an employee’s health information).

In this case, the employee lodged a complaint with the Office of the Australian Information Commissioner (OAIC), who decided that the employer’s actions were not subject to the APPs because:

• the information on the laptop was an employee record and was subject to the exemption under the Privacy Acton the basis that the information was subject to monitoring in accordance with the employer’s policy;
• the employer’s actions in dealing with the employee’s personal information in the laptop were directly related to the employment relationship at the time and the employee records relating to the employee; and
• even if the exemption did not apply, there were reasonable arguments that the employer had not breached APPs.

The OAIC told the employee, ‘I consider that you were aware that the work computer was not your private property, and that any data saved to the computer may have formed part of your employee records, as it was subject to routine monitoring and review’.

The FCA agreed with the OAIC’s decision and dismissed the employee’s judicial review application.

Employers may wish to seek legal advice for the purpose of obtaining a protective surveillance policy that facilitates lawful monitoring of their employees’ use of company property.

Madzikandav Australian Information Commissioner [2023] FCA 1445

FWC finds bad-mouthing employer on a group chat is a sackable offence

The FWC has found that an employee criticizing her employer in a social media group chat formed a valid basis for the employee’s dismissal.

The employer had previously warned the employee about the group chat, which was used to invite staff members to events or to ask work-related questions. However, the employee continued to vent in away that ‘incit[ed] a negative and combative environment among the team’ and ‘used language that could incite bad behaviour and negativity toward leadership and management’.

The employee also removed management members from the group chat, saying that it shouldn’t have been an issue since it was not a work chat but rather a social chat with friends.

Ultimately, the FWC found the group chat was ‘clearly related to working at the [employer’s business]’ and was therefore sufficiently connected to the workplace. As a result, the FWC found the behaviour of the employee cumulatively provided a valid reason for her dismissal.

Breanna Roche v The Trustee For The Dolphin Hotel Unit Trust [2024] FWC 606

Federal Court says redundant employees could have been deployed to roles performed by contractors

The Full Federal Court (FCAFC) has recently clarified (in considering an appeal of the FWC’s decision in an unfair dismissal case) that an employer’s reliance on external labour, such as contractors, is relevant in determining the validity of an employee’s redundancy.

The FCAFC held that the ‘immediate unavailability of a position to which a redundant employee could conveniently have been redeployed does not necessarily inoculate an employer against a charge that a dismissal was not a case of genuine redundancy’.

For an employee to succeed in an unfair dismissal claim, they need to show, among other things, that their dismissal was not a case of ‘genuine redundancy’. A dismissal will not be a genuine redundancy if it is established that it would have been reasonable in all the circumstances for the employee to be redeployed within the employer’s enterprise or an associated entity of the employer’s enterprise.

The term “redeployed” refers to reassigning an employee (whose role is redundant because the position they were performing is no longer required to be done by anyone) to undertake another role with other tasks, assuming that the employee has the requisite skills and experience or could be reasonably trained to do that new role.

In this case, the employer had made 22 employees redundant. The employees challenged their redundancies claiming that it would have been reasonable for their employer to redeploy them to other roles which were being performed by contractors. The employees were successful in the FWC and the employer challenged the FWC’s decision in the FCAFC.

The FCAFC held that ‘[t]he fact that there might be some barrier that makes redeployment more difficult or more involved than it otherwise could be—whether that barrier takes the form of a need for retraining or, as here, the pre-existing occupation of roles by contractors—is not to the point. Whether redeployment “would have been reasonable in all [of] the circumstances” requires analysis of what an employer could have done apart from dismissing the employee’.

It was ultimately upheld the FWC’s decision that the employer could have redeployed the employees into roles occupied by contractors, and therefore it was not a case of genuine redundancy. The employer has since made an application to appeal this decision in the High Court of Australia.

Key takeaway for employers

This decision serves as a warning to employers that redeployment must be considered taking ‘all of the circumstances’, including any reliance on contractors, into consideration. This requires employers to contemplate reducing the amount of external labour they utilize and retraining staff who may not possess the relevant skill set for a role. If this decision stands and is not overturned by the High Court, it will no longer be sufficient for employers to take the ‘easy path’ at the cost of maintaining employment.

Helensburgh Coal Pty Ltd v Bartley [2024] FCAFC 45

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

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