Anyone, anywhere, anytime? When employers’ liability expands beyond 9-5

Jessica Anderson, Graduate Associate 

A recent decision of Queensland’s Civil and Administrative Tribunal once again emphasises the need for employers to be proactively engaged in educating workers and addressing sexual harassment issues that arise in the workplace, and the risk of substantial awards of damages in the event they fail to do so. In this instance, the Tribunal found the employer (a hotel) vicariously liable for sexual harassment engaged in by a contractor, who worked for the employer, and awarded over $300,000 in damages. 

The scope of vicarious liability 

The conduct in question involved a sexual assault in the early hours of the morning in the accommodation provided by the employer and shared by the contractor and a female employee. This conduct constituted unsolicited acts of physical intimacy and unwelcome conduct of a sexual nature so as to meet the definition of sexual harassment in section 119 of the Anti-Discrimination Act 1991. However, the employer disputed that it was vicariously liable for the assault, on the basis that it did not occur “in the course of work”. The Tribunal rejected this argument, finding that in the case of the contractor’s actions “the course of work” included the hours between 10pm and 6am, as he was on call during those hours and the employer provided him with on-site accommodation to enable him to do this work and therefore he was at that time “a worker performing work”. 

Reasonable Steps

The Tribunal also rejected the argument that no reasonable steps could have been taken by the employer and found that the accommodation in which the assault occurred was not only a home, but a place of work. The Tribunal observed that had the employer taken steps to inform its workers of their legal obligations at work (in the broad sense of what constituted a place of work) and conducted training on the subject, it might have avoided being held responsible. 

Damages awarded 

This case emphasises that the consequences of inaction on the part of an employer can have significant ramifications. The Tribunal found that the employee suffered a serious and shocking sexual assault, resulting in a number of psychiatric conditions (including PTSD), and awarded $70,000 in general damages. As a result of this experience the employee was unable to work for a number of years, and received compensation for past economic loss for the period of incapacity for work (less worker’s compensation payments) as well as payment for future economic loss due to the impact of her residual PTSD on her ongoing employment prospects. 

Lessons for employers

  • Vicarious liability can arise not only with respect to the conduct of employees but also contractors. 
  • The place of work is a broad notion and can include employer-provided accommodation. 
  • Vigilance is required in ensuring reasonable steps are taken to educate workers about their legal obligations and the standards of behaviour at work
  • The ramifications of sexual harassment occurring at work are very significant, and may result in substantial awards of damages.

Online trolling and the workplace

 

The use of social media in the workplace is not only tolerated by employers, but is now often actively encouraged. With employees increasingly required to engage with social media platforms during the course of their duties, the risks associated with social media have also become a challenge for employers, including the presence of online trolls.

Online trolling is when someone posts inflammatory, extraneous or off topic messages in an online community with the intention of provoking readers into an emotional response or of otherwise disrupting normal on-topic discussion. Online trolling can also go as far as targeting individuals with explicit content or in extreme circumstances may even involve death threats to the individual.

Some commentators have suggested that employers offer social media “self-defence training” in light of online trolling. Other employers have implemented strategies to minimise the risks associated with online trolling through their policies and procedures.

What obligations does an employer have to protect their staff from trolling?

Employers have obligations under work health and safety legislation to ensure, so far as is reasonably practicable, the health and safety of workers, including their mental health. Online trolling poses a significant risk to employees in this respect if they work primarily or exclusively on social media platforms. Online trolling, by its very nature, is aimed at causing offence or provoking emotional responses. If an employee is exposed to these sorts of provocative messages and images without having the necessary support or training to deal with them, an employer may find that it is at risk of being in breach its obligations where an employee’s health or welfare is adversely affected by the trolling.

Steps to counter the effects of trolling 

Employers need to be aware of ways in which they can help minimise the risk of harm to an employee arising from online trolling, particularly for employees who are expected to use social media as part of their everyday duties. Some examples include:

  1. implementing social media self defence training [the Australian Broadcasting Commission is an example of an organisation that has rolled out social media training after a number of employees were trolled online];
  2. amending their social media policies to include the steps an employee should take to manage online trolls and an escalation process for dealing with threatening and abusive messages; and
  3. ensuring that employees understand when and how to respond to online trolls, particularly where representing the employer in their online interactions.

What if your employee is the online troll?

There have been some reports about victims of online trolling notifying the employer of the person engaged in the trolling about these activities. A recent high profile example was a hotel worker being terminated from his employment after Fairfax Media columnist Clementine Ford screenshot the abusive and offensive messages that he had sent to her and forwarded these on to his employer, Meriton. Meriton responded by conducting an investigation into the employee’s behaviour and subsequently terminating his employment.

If you would like assistance with reviewing or preparing social media and electronic communications policies, procedures or training, please contact a member of the PCS Legal Team on (02) 8094 3100.

Planning for the end of year celebrations – How to avoid festive fallout

Lyndall Humphries, Senior Associate

The end of the year is fast approaching and so too is your end of year work function. Start thinking now about how to avoid a festive fallout. You don’t want to be that event in the news after the festive season! What type of scenarios are we talking about?

  • the case where a team leader repeatedly made undesired romantic and sexual propositions to a colleague, despite her clear decline and refusal, and suddenly kissed another colleague in an unsolicited and unprovoked manner;
  • the case where a project coordinator aggressively harangued a colleague, repeatedly pushed him in the chest and then threw him fully clothed into a swimming pool. He also refused to leave the premises and initiated a fight with the General Manager who he then pushed to the ground; or
  • the case where a disability support worker made inappropriate and offensive comments and on previous occasions caused a colleague discomfort by wearing to past Christmas parties an apron displaying woman’s breasts with tinsel attached.

These are just some of the situations that have arisen following a festive fallout. Here are six proactive measures for employers to consider ahead of the festive season.

  1. Be creative in the planning of your function to be as inclusive as possible. Not all functions need to be centered around the consumption of alcohol. Be sensitive to the needs of employees of different cultural backgrounds and faiths and those with family or carer’s responsibilities. For example, you may wish to consider whether it might be more appropriate to hold your function during the day rather than after work, whether it might be suitable to invite family members of employees and whether it might be more culturally sensitive to describe the event as an end of year function rather than a Christmas party.
  2. Before the function, be clear with employees about the standards of behaviour expected of them in accordance with company policies (including those dealing with bullying and harassment, anti-discrimination and social media) and the consequences of not meeting those standards. Have your policies in order before the festive season begins.
  3. It is a good idea to specify clear starting and finishing times for your function. Setting boundaries will help to reduce the risk of an employer being found liable for the actions of employees that take place after the function. While it may be common for employees to kick on after the function, this shouldn’t be organised or proposed by the employer. These are important steps for employers to minimise risks, but it can be difficult to draw a line between what is work related conduct and what is beyond the employment context.
  4. An end of year function is a good opportunity to reward employees for their efforts during the year. If drinks are provided it is important that employers ensure the responsible service of alcohol and satisfy themselves that any external function provider will do the same. Think about arranging for drinks to be handed out upon request rather than allowing employees to help themselves.
  5. Appoint a senior manager to supervise the overall running of the function rather than leaving it to run itself. The manager should be responsible for remonstrating with employees about bad behaviour, limiting or refusing alcohol to employees who are visibly intoxicated or suggesting that employees head home.
  6. If allegations of bad behaviour are raised after the function, conduct an investigation into the facts and allegations and ensure that procedural fairness is afforded to the employees in question. Any disciplinary action that is taken against an employee should not be inconsistent with the treatment of other employees for similar or worse incidents.

We hope these proactive measures help you to enjoy the festive season without fear of legal implications. If you would like further information on the above please contact a member of the PCS Legal Team.

Off and racing – Dealing with Melbourne Cup matters

Lyndall Humphries, Senior Associate

With the Melbourne Cup just around the corner, here are some tips for employers on dealing with the fallout that can arise after the celebrating ends.

Just a glass?

Celebrating the Melbourne Cup or other festivities brings with it risks to employers, especially when employees indulge in a few drinks or special lunches have been organised during the day. It is important that employers have a clear policy regarding alcohol in the workplace that is communicated to all employees and consistently implemented.

One case illustrates that this is particularly important when employees are using heavy machinery. A poultry worker turned up to work after having had three to four glasses of wine in the course of Melbourne Cup day celebrations and ran over 50-60 birds, killing them all. She was dismissed during her shift because she arrived at work intoxicated, and this was conduct that that could have caused serious and imminent risk to the health and safety of a person or to the reputation, viability or profitability of the employer’s business. Despite having been dismissed, the poultry worker continued to work for potentially another three to four hours. Although the employer claimed to have a zero tolerance policy to drugs and alcohol in the workplace, the evidence did not support a finding that the poultry worker was bound by a zero tolerance policy.

The Fair Work Commission (“FWC”) found that there was no valid reason for the dismissal. It noted that no steps had been taken to assess the poultry worker’s condition and she had not been directed to cease work during her shift. It also found that the employer’s policies were unclear in regards to the standard of behaviour to which the poultry worker was being held to account.

Just a cheeky sickie?

While calling in sick on Melbourne Cup day may result in some raised eyebrows, employers also need to be careful about jumping to conclusions.

In one case, a rigger was dismissed following the conclusion of an investigation into his unauthorised absence from work. The rigger informed his supervisor at the commencement of his shift that he was leaving early that day to attend Melbourne Cup celebrations. When his supervisor informed him that his absence would be unauthorised, he said “oh well I’m just sick then” and left work, later producing a medical certificate stating he was unfit to perform his duties on Melbourne Cup day.

The FWC appreciated the employer’s scepticism over the genuineness of the rigger’s illness but concluded that it was not unauthorised leave because there was no evidence to challenge the medical certificate. The FWC noted that the rigger was difficult to manage but, in the circumstances, had been unfairly dismissed. Permission to appeal the FWC’s decision was refused by the Full Bench of the FWC.

Where an employer has legitimate concerns about the veracity of a medical certificate this must be approached on the basis of actual evidence and not mere suspicions based on the day in question.

Just a quick bet?

Partaking in the excitement of Melbourne Cup should not mean that an employee fails do their job.

For example, consider the case involving a child and family caseworker who was assigned to escort a juvenile in custody to visit his parents’ family home. Sometime after noon the caseworker left the family home to go to the TAB to place some bets and returned just before the start of the races, but the juvenile was no longer there. In fact, the juvenile had gone to the home of an acquaintance and consumed a significant quantity of alcohol, marijuana and pills before becoming involved in a fight while armed with a samurai sword. Eventually, the police intervened and after some heightened activity gained control of the situation and took the client into custody. When the caseworker returned to the office he was suspended on pay and an investigation was conducted into his conduct. Perhaps not surprisingly, he was subsequently dismissed, which the Australian Industrial Relations Commission considered justified as he had been grossly negligent in his responsibilities.

No one wants to discourage employers from using the Melbourne Cup festivities to bring their team together and reward them for their hard work, but we strongly suggest that employers make clear their expectations to avoid an unfortunate fallout and investigate any issues that do arise without delay.

It’s private!…or is it?

 

Elizabeth Kenny, Associate 

recent decision of the Victorian Supreme Court has shed some light on how information privacy principles apply to employee’s social media. The Court found that an employer had not breached an employee’s privacy by accessing her Facebook account while conducting a misconduct investigation. 

Ms Lara Jurecek, an employee of Transport Safety Victoria, was the subject of a disciplinary investigation as a consequence of chats and posts on Facebook with respect to her workplace and colleagues, including an abusive message to a colleague posted on the colleague’s Facebook wall. The colleague reported these events to Transport Safety Victoria, and an external investigator was engaged. Ultimately the misconduct was substantiated and Ms Jurecek was given a final warning.

Ms Jurecek made an application to the Victorian Civil and Administrative Tribunal (the “Tribunal”) claiming that her personal information (including her Facebook messages) had been obtained by her employer without first attempting to obtain it directly from her or notifying her. She alleged that such conduct breached the Information Privacy Principles (“IPPs”) in the Information Privacy Act 2000 (Vic). The Tribunal rejected her arguments on the basis that the collection of the information was part of Transport Safety Victoria’s investigation into the alleged misconduct, and did not involve any inappropriate conduct on the part of Transport Safety Victoria, such as “hacking” into her Facebook page. 

Ms Jurecek appealed the decision to the Supreme Court of Victoria which confirmed the original decision. The Court noted that the collection of the information was necessary for conducting the misconduct investigation, which was a legitimate purpose. With respect to the obligation to notification the employee that her information had been collected, the Court found that it was not practicable for the employer to do so in these circumstances as this could have jeopardised the integrity of the disciplinary investigation.

What does this mean for employers?

The employer in this case was a State public sector agency, subject to the Victorian Information Privacy Act 2000 (Vic) and it’s IPPs. These principles are expressed in similar terms with to the Australian Privacy Principles (“APPs”) in the Privacy Act 1988 (Cth). The Privacy Act 1988 (Cth) governs the federal regulation of privacy, and its APPs apply to most private sector organisations in terms of how such organisations handle, use and manage personal information. 

From this case we can see that information collected for an appropriate purpose and obtained in a lawful and reasonable manner is unlikely to breach privacy law. The investigation of misconduct allegations involving an employee’s social media interactions can establish a legitimate purpose. While pursuing that purpose, employers still need to take care to ensure that any information collected is not obtained unlawfully or in an improper manner, such as hacking a Facebook account or covertly enticing an employee to provide the information.

Checks and Balances: Background checks in the workplace

James Zeng, Senior Associate

Recent news reports about the possibility of persons convicted of sex offences being employed in workplaces where minors also work, has caused some employers to review their recruitment processes and the background checks they conduct.

Some employers are unsure as to which type of background check should be conducted and the differences between working with children checks and police or criminal record checks. In particular, some employers have questioned whether they need to conduct working with children checks where they employ both adults and minors (less than 16 years of age) in the same workplace.

Working with Children Checks

The Child Protection (Working with Children) Act 2012 (NSW) defines what “child-related work” is. Child-related work includes work involving children in education, sport, transport services, entertainment and health services. The requirement to obtain a working with children check clearance applies where a “worker” (which extends to employees, contractors, volunteers) undertaking “child-related work’ has “direct contact” with children (defined as physical or face-to-face contact) or is employed in a “child-related role”. The work must be “child-related work” for an employer to register online to verify their workers’ or prospective workers’ working with children check.

Police or Criminal Record Checks

A police or criminal record check may be an alternative avenue for conducting background checks. A police or criminal record check will be mandatory where it is a legislative requirement of the position that employees or job applicants not have a criminal record. Beyond this situation, employers can seek the consent of their employees or prospective employees, but this is limited to where a person’s criminal history is relevant to the inherent requirements of the role. To act otherwise may constitute discrimination in employment on the basis of criminal record.

Our table below outlines some of the differences in New South Wales, in the process between Police/Criminal Record Checks and Working with Children Checks.

​Can I have a sample please? Best practice tips for drug testing

Jessica Anderson, Graduate Associate

recent decision of the Fair Work Commission highlights the stringency required when conducting drug testing on employees.

In this case an employee refused her employer’s direction to provide a urine sample by:

  • objecting to her immediate supervisor collecting it because it was inappropriate to have someone she knew, and worked with closely, taking the sample; and
  • stating that the collection was not in accordance with the employer’s policy.

The employee was subsequently dismissed for serious misconduct in relation to her failure to follow management’s reasonable direction to undergo a urine drug test to determine if she had any illicit drugs in her system.

The Commission determined that it was not best practice to take a urine drug sample from a person you work with and know, and certainly not from a person you directly manage. The employer also did not comply with its own collection protocols when proposing to undertake the drug testing.

Ultimately, it was held that there was no valid reason for the dismissal based on a number of factors (including the provision of a valid medical certificate and a willingness by the employee to provide a urine sample at a later date). Even if there had been a valid reason, the lack of procedural fairness afforded by the decision-makers and the uncertainty as to the reasons for dismissal would have rendered the dismissal unjust.

Lessons for employers

  • Establish a clear drug testing policy and comply with it.
  • Consider the most appropriate individuals to undertake the testing and do not allow managers to undertake testing of their direct reports.
  • Be clear on the steps required under a policy and the reasons for dismissal. An unclear drug testing policy and unclear or confused reasons for dismissal may result in a dismissal being held to be unfair.

The investigation is biased! When to consider an external investigation

Jessica Anderson, Graduate Associate

The Fair Work Commission has identified that it may be prudent for employers to engage an independent third party to conduct a workplace investigation where an employee vigorously asserts that an internal investigation into bullying allegations will lack transparency or independence.

Background

In a recent decision of the Fair Work Commission, an employee claimed she had been bullied at work by her manager, against whom she had made a number of complaints previously. The allegations were the subject of two internal investigations that found the manager had acted reasonably. However the employee insisted that the investigations produced an unfair result.

Deputy President Sams was satisfied with the employer’s internal investigations, finding that they were “sound, appropriate and responsive” and allowed the employee “every opportunity” to present her version of events, and noted that it was the employee who was acting unreasonably.

In making his determination, Deputy President Sams said that “no matter what the result of any investigation of her complaints, particularly those conducted by the employer” the employee was “not prepared to accept any outcome, unless it unequivocally vindicated her complaints”. He then went on to recommend an external investigation where it is clear that the employee will not accept the findings of an internal investigation.

Lessons for employers

  • Consider engaging an independent third party to conduct an investigation where it is apparent that an employee will not accept the findings of an internal investigation.
  • Be mindful where an employee’s focus appears to be on exacting revenge or retaliation. That is not the intent of the bullying jurisdiction.
  • A best practice investigation will be “sound, appropriate and responsive” and will provide the employee with every opportunity to present their version of events.
  • Even though an employee is asserting that they are being bullied, this does not mean that they are insulated from any disciplinary action. For example, it may be appropriate for an employee to be disciplined where there is a constant refusal to comply with the reasonable directions of their manager.

Can you sack an employee for sleeping in?

Beverley Thomas, Associate

Yes, you can, provided that you can demonstrate that dismissal was not harsh, unjust or unreasonable. The same may apply to other bad habits of employees that undermine an employer’s professional standards or policies.

Recently the Fair Work Commission (“Commission”) commended auctioneer house, Pickles Auctions (“Pickles”) on their approach toward the dismissal of a car detailer with a bad habit of tardiness. He had previously received numerous verbal and written warnings for poor attendance. The detailer, who had been employed by Pickles for close to seven years, filed an unfair dismissal claim following the termination of his employment because he had slept in and failed to notify that he would be late. His dismissal occurred after he attended work more than an hour past his scheduled start time. When questioned by Pickles in a disciplinary meeting as to why he was late, his response was simply that he thought “the time was earlier than it was”.

Pickles was successful in defending the unfair dismissal claim. This was mainly because it was able to satisfy the Commission that it had given the Applicant an opportunity to explain his late attendance and he failed to do so, in circumstances where he had “a demonstrated inability to improve his attendance conduct…”.The Commission also noted that Pickles’ approach to the procedural aspects of the dismissal “should properly be recognised as commendable”.

Here’s our top takeaways from the example set by Pickles if you are considering the ongoing employment of an employee with a bad habit.

  1. Keep a paper trail: Formally raising dissatisfaction with an employee’s conduct in writing can assist an employer to establish a valid reason for dismissal. In this case, Pickles was able to do just this as it relied on the six written and numerous verbal warnings given to the employee in respect of his ongoing failure to attend for work at the scheduled time..
  2. Ring the alarm: Employers mustn’t be shy to raise their concerns about unsatisfactory performance. Not only does it put an employee on notice that their conduct may be putting their employment in jeopardy but it allows them an opportunity to improve and meet the employer’s expectations. Pickles had evidence of raising concerns with the Applicant since 2011 and as recently as in the last 6 months of the employee’s service which minimised his ability to argue that he was not given the opportunity to improve his behaviour.
  3. Let the employee have their say: A dismissal is less likely to be deemed unfair if the employer can show that they gave the employee a chance to provide an explanation or defence for their unsatisfactory conduct. It is important that this step is not regarded as a “checkbox” to be “ticked off”. Proper consideration must be given to what an employee has to say. Pickles met with the Applicant to do exactly this but instead of immediately terminating his employment it adjourned the meeting to consider the employee’s excuse, his work history and the previous warnings given, before reconvening to terminate his employment.
  4. Offer a support person: Employees do not have a general entitlement to have a support person present at a disciplinary meeting but the unreasonable refusal of a support person may weigh against an employer in the event an employee requests one. For this reason it is recommended that employers offer an employee the opportunity to bring a support person along to a meeting where dismissal is a possible outcome.
  5. Know your expertise: The Commission is at liberty to scrutinise an employer’s management resources and whether the lack of HR expertise has impacted on the procedures followed in effecting a dismissal. The Commission was impressed by Pickles’ dedicated in house employment relations specialist in this matter and held them accountable for the proper and just dismissal of the Applicant. Seeking the external counsel of an employment law specialist like PCS can also assist an employer to meet this criteria.

When employees walk out

David Weiler, Associate

Recently it was reported that up to 500 journalists and other editorial staff walked off the job in response to an announcement by Fairfax Media that it intended on making cuts to the equivalent of 120 full-time staff. This dramatic display of industrial defiance is an example of where a breaking point has arisen between employees and management. 

The actions taken by the Fairfax employees constituted unprotected industrial action under the Fair Work Act 2009 (Cth) (“FW Act”) as it was not undertaken as the result of a protected action ballot (nor could it have been as the relevant enterprise agreement had not yet expired). This type of behaviour can be extremely detrimental to businesses and employers should be aware of their rights in preventing such action, especially those in the public spotlight. 

If an employer is of the opinion that unprotected industrial action is threatened, impending or probable it has the ability to apply to the Fair Work Commission to make an order to stop the industrial action (or proposed action). Therefore it is crucial that if an employer thinks action may be taken, it acts as swiftly as possible. A breach of an order to stop bargaining can carry a maximum penalty of $10,800 for individuals and $54,000 for bodies corporate. 

However, although the Commission must (so far as practicable) determine such an application within two days after the application is made, this is not always enough time. In the case of the Fairfax employees, they were only given notice of the proposed redundancies on a Thursday morning and the first wave of 24-hour strikes began on Friday. This demonstrates the potential for disruption from unprotected industrial that employees can cause, often with little recourse. Importantly, employers are prevented under the FW Act from taking adverse action against an employee that takes part in industrial action, regardless of whether it is protected or not.

If employees do take unprotected industrial action, employers are obligated under the FW Act to not pay them for this period of time (and at least four hours of pay if the action lasts less than four hours). 

The Fairfax dispute is a high profile example of how important it is for employers to manage industrial relations even when an enterprise agreement is on foot. We work with clients on how to effectively engage early, often and genuinely with both employees directly and their union representatives.