WORKPLACE RELATIONS
Extra Public Holiday for New South Wales
With Christmas fast approaching, it is important for employers to know that as Boxing Day falls on a Saturday this year, the NSW Government has gazetted Monday, 28 December 2009 as the Boxing Day public holiday.

This means that any employee asked to work on Monday, 28 December 2009 must be paid public holiday rates and penalties.

For further information or assistance in determining what rates and penalties apply to your employees, please contact Workplace Law.

New South Wales to Refer Industrial Relations Powers to the Commonwealth
New South Wales (NSW) has joined South Australia, Queensland, Tasmania and Victoria in referring industrial relations powers to the Commonwealth.

What this means is that employers who were formerly not covered by the Fair Work Act 2009 (Cth) (the FW Act) as they were not a national system employer (i.e., a constitutional corporation), will be covered from 1 January 2010.

The only employees who will remain covered by the NSW Industrial Relations Act 1996 are those employed by NSW government departments such as teachers and police, and local councils.

The NSW Industrial Relations Commission will continue to operate and will hear only public sector and local government disputes, as well as workplace safety matters.

What Will Happen to State Awards / NAPSAs from 1 January 2010?
As NSW employers and employees (other than local council and government departments) will be covered by the FW Act from 1 January 2010, this means that technically the Modern Awards will also apply to them from that time.

This will bring significant change for NSW employers and employees who are used to the terms and conditions imposed by NSW awards and NAPSAs. 

However, the Department of Education, Employment and Workplace Relations (DEEWR) has proposed that employees remain on their applicable state award for a period of 12 months from 1 January 2010 to assist with the transition.

During this 12 month period, Fair Work Australia (FWA) will need to consider whether the Modern Awards will need to be varied to accommodate the incoming state employers and employees. 

As part of the transition from the state system to the Federal system, incoming state employees will have their existing pay protected as they move into the Federal system.

Further Amendments to the Fair Work Legislation
On 21 October 2009 the Fair Work Amendment (State Referrals and Other Measures) Bill 2009 (the Bill) was introduced into the House of Representatives.  The Bill will amend the FW Act to enable the States to refer workplace relations matters to the Commonwealth.

The Bill also amends the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (the Transitional Act) to establish arrangements for employers and employees transferring from the State systems to the Federal system. 

EMPLOYMENT
Worker Reinstated Despite Pornographic Material Found on Work Computer
A 49 year old technical officer employed by the Department of Defence (the Department) was reinstated after his employment was terminated for having pornographic images on his work computer.

The employee had worked for the Department for 25 years and had an unblemished record. 

In early 2008 115 images were located on the employee’s H drive.  The images were viewed and were found to be inappropriate.  The allegations were put to the employee and in his written response, he stated that he often receives messages and to reduce the amount of emails in his account he sends material to his H drive.  He stated that he did not have time to examine each email before it was saved to his H drive.

The employee stated that he would be extra vigilant and strive hard not to breach the APS Code again.

In the Department’s letter in response, the employee was asked to respond to the possibility of his employment being terminated.

The employee stated that the material had been sent to him in 2004 by a former supervisor who has since retired.  He stated that he had never accessed, forwarded or dealt with the material again.  He again referred to his unblemished record and noted that he had received awards and letters of appreciation from various ships and agencies he dealt with.

The employee further submitted that his skills would be of no use outside of the Department and as he suffered from diabetes and Klinefelters Syndrome and also due to the economic crisis, he would struggle to find other employment.

The employee was notified by letter that his employment had been terminated.  There were two additional reasons other than the pornographic images which were referred to as a basis for the decision.  These were that the employee had been dishonest during the investigation and had made false comments regarding what was said to him by a clinical psychologist employed by the Department regarding the pornographic images.

Commissioner Cargill accepted that the employee was remorseful for his conduct.  Commissioner Cargill was satisfied that the pornographic images on his computer was a valid reason for termination of employment but then took into account his length of service.

Commissioner Cargill stated that “…such a long period of unspoilt service should be taken into account.”  Further, Commissioner Cargill stated that the “…misconduct occurred a number of years ago and has not been compounded by any subsequent transgression by way of access or other dealing with the material.”

The impact of the termination on the employee’s personal circumstances was also examined and Commissioner Cargill noted that his medical condition requires ongoing costly treatment.  The employee’s contrition for his actions was also taken into account.
Based on these factors, Commissioner Cargill found that the termination of employment was harsh “…because it was disproportionate to the gravity of Bates’ conduct and because of the consequences for the personal situation…”

The employee was reinstated but the Department was not ordered to pay the employee for lost remuneration. 

See: Mr Peter Bates v Commonwealth of Australia (Department of Defence) [2009] AIRC 899 (26 October 2009).

Comments
When deciding on whether an employee’s conduct is serious enough to justify termination of the employment relationship, employers must take into account factors such as length of service, prior conduct, and the impact of the decision on the employee.  A decision to terminate an employee’s employment should not be taken lightly.

Before terminating an employee’s employment, seek advice from your workplace relations lawyer or contact Workplace Law to ensure that the process is handled correctly and in a way so as to minimise an unfair dismissal claim. 

Brewery Employee Sacked for High Range Drink Driving
Fair Work Australia (FWA) has upheld the dismissal of an employee who drove his motor vehicle when he was three times over the alcohol limit during his leisure time.

The employee, a process worker at the Boag’s brewery in Launceston was driving on a Friday night in March 2009 when he was breath tested by police and was found to have a blood alcohol limit of 0.154.

When he returned to work on the Monday, the employee told his supervisor that he had been charged by police and he was stood down on full pay.  The employee attended two meetings accompanied by his union representative and was dismissed.

The employee lodged an unfair dismissal claim.

Five years ago the Company introduced a responsible drinking policy. The policy included many statements, the most relevant of which stated “Any incidence of a person found to have been driving whilst above the legal blood alcohol limit, whether on company business or not, will be considered to be a serious breach of this policy.  Anyone who breaches any aspect of this policy will be subject to appropriate disciplinary action which may include dismissal.”

People and Culture Director of Lion Nathan, Robert Barbour, told FWA that “…driving whilst under the influence of alcohol is one of the clearest and most serious examples of irresponsible use of alcohol…” that could lead to media reports identifying an offender as a Lion Nathan employee.

Mr Barbour told FWA that the employee had attended one of the Company’s sessions on its responsible drinking policy and understood it and the Company’s requirement that employees don’t drink and drive.

The LHMU argued that the employee should be reinstated as there was not a sufficient connection between the employee’s conduct and his workplace.  The LHMU stated that the employer should not be able to interfere in an employee’s private life.  The LHMU also stated that the employee had voluntarily told his employer and the employer would have been unlikely to find out about it.  In addition, the employee had eight years of unblemished service with Lion Nathan.

Lion Nathan maintained that drink driving was a valid reason for dismissal and was a proportionate response as the conduct was a serious breach of the safe drinking policy.  Lion Nathan further submitted that the employee’s conduct had the potential to damage the Company’s reputation.

Commissioner Deegan upheld the dismissal and found that Lion Nathan had a valid reason.  Commissioner Deegan found that the employee was aware of the drinking policy and that this was demonstrated by his bringing the “…transgression to the attention of his supervisor.”

Commissioner Deegan stated “…where an employer can establish a legitimate interest in the conduct of its employees outside of work hours, policies aimed at regulating that conduct and protecting the employer’s interest will generally be found to be reasonable.”

Commissioner Deegan found that Lion Nathan’s responsible drinking policy was lawful and reasonable and designed to protect its legitimate business interest.  As the employee had known that a breach of the policy could lead to termination, the dismissal was not harsh, unjust or unreasonable

The LHMU has indicated that they are awaiting advice on whether to appeal the decision.

See: Nick Kolodjashnij v Lion Nathan T/A J Boag and Son Brewing Pty Ltd [2009] AIRC 893 (16 October 2009).

Comments
This case demonstrates the effectiveness of a well drafted policy.  Employers should be mindful of the type of conduct employees can engage in outside of work hours and whether the conduct can have an impact on the legitimate business interests of the Company. For example, the conduct of a solicitor in their private life may affect the reputation of the firm and therefore, a policy which seeks to restrict the types of activities the solicitor can engage in may be found to be reasonable and enforceable. 

For assistance in updating and / or drafting your workplace policies, contact the team at Workplace Law.

DISCRIMINATION / HARASSMENT
Women Only Travel Service - Is it Discrimination?
A Melbourne woman is seeking an exemption from anti-discrimination laws so that she can set up a women only travel service.

Erin Maitland is seeking to set up “Travel Sisters” after women told her they were sick of tour groups centred on “booze and bed-hopping”.

This year a party company specialising in dance events for lesbians and bisexual women won the legal right to ban men.  A Melbourne primary school was also granted an exemption from the anti-discrimination laws to employ a male handler for a violent student who would be a danger to women. 

Ms Maitland told the Victorian Civil and Administrative Tribunal (the Tribunal) that a lot of her female friends “…want to go on a trip without worrying who is sitting on whose lap by the pool the next morning.”

The Victorian Equal Opportunity and Human Rights Commission said that while it did not oppose a single-sex service, the exemption could not be granted as Ms Maitland had not provided any supporting evidence to make the limitation of a human right “demonstrably justified” as required by the Victorian Charter of Human Rights, which was introduced three years ago.

Judge Marilyn Harbison, Vice-President of the Tribunal, reserved her decision.  We will keep you informed of the outcome.

Employer Who Banned Foreign Language in the Workplace Ordered to Pay $28,000 to Employee for Discrimination and Victimisation
Several Vietnamese-speaking employees with limited English were employed by Casabake Pty Ltd (Casabake) in dough mixing and baking roles.

In October 2007 the supervisor, Mr Ngozi, said “I hate Vietnamese”.  He also told the employees they “…should be fighting for Australia because they are Australian citizens and Australia has given them everything they have earned.”  He also directed the employees not to speak Vietnamese in the workplace.

The employees complained and Mr Ngozi told them if they did not like it they could go home.  The employees then complained to Mr Barbaro, the owner of Casabake but he told them there was nothing he could do. 

Several of the employees walked out for two days, including Mr Vuong.  During this time Mr Vuong lodged a discrimination complaint. 

Mr Vuong returned to work and was given his job back however, after two days Mr Barbaro asked Mr Vuong to withdraw the discrimination complaint.  Mr Vuong refused and his pay was docked $25 per week.

When Mr Vuong questioned Mr Barbaro about the underpayment, he said “That’s it. If you want to stay and work, it’s ok.  If you don’t, go home.”  Mr Vuong resigned some time later.

Judicial member Eraine Grotte and non-judicial members Laura Money and Maurice O’Sullivan of the NSW Administrative Decisions Tribunal (ADT) found that Mr Barbaro had failed to take any steps to address Mr Ngozi’s remarks about speaking Vietnamese or reassure the employees that they could return to work.  The ADT found that this failure left the employees feeling they had no option but to leave.

As Mr Ngozi’s comments related only to Vietnamese people the ADT found that Mr Vuong had suffered differential treatment compared to people of other races to his detriment. 

The ADT found that there had been a beach of s. 8(2)(a) of the Anti Discrimination Act 1977 (NSW) (the AD Act), which states that it is unlawful for an employer to discriminate against an employee on the ground of race in the terms and conditions of employment which the employer affords the employee or by dismissing the employee or subjecting the employee to any other detriment. 

The ADT found that Mr Ngozi only prohibited the Vietnamese language being spoken in the workplace, despite Casabake’s evidence that there were many other nationalities in the workplace.  The ADT concluded that this was differential treatment when compared with the other employees in the workplace, on who no prohibition had been placed.  Therefore, the ADT found that the complaint of direct race discrimination was substantiated.

The ADT further found that Casabake was vicariously liable for the actions of Mr Ngozi pursuant to s. 53 of the AD Act.  Mr Vuong was awarded $12,000 in general damages for racial discrimination and the ADT was satisfied that Mr Vuong suffered distress and humiliation as a result of the race discrimination. 

Mr Vuong also alleged that he was victimised because he had made a complaint to the ADB.  Mr Vuong alleged that the detriment to which he was subjected was that his pay was reduced by $25 per week.  Section 50 of the AD Act makes victimisation unlawful.  The ADT found that the victimisation complaint was substantiated and that Mr Vuong suffered a detriment as a result of lodging a complaint with the ADB, the detriment being a loss in wages and forced to leave his job. 

The ADT awarded six months pay to Mr Vuong for economic loss, which equated to $16,406.  The ADT also took into account that Mr Vuong had been unemployed for two years, was 50 years old and had limited English skills which would make it difficult for him to find another job.

See: Vuong v Casabake Pty Ltd [2009] NSWADT 279 (9 November 2009).

Comments
It is important for employers to realise that by not acting on a complaint of discrimination, they can be found liable for the actions of supervisors and managers.   The concept of vicarious liability simply means that what employers ignore they accept. 

In the above case, by Mr Barbaro ignoring and failing to act on the complaints of several Vietnamese employees, the ADT found that he did nothing to prevent the discrimination and therefore, by his inactivity he sanctioned, permitted and authorised the act of discrimination. 

For further information on discrimination in the workplace and tips on how to reduce the risk of a discrimination and / or victimisation complaint being made against you, contact the team at Workplace Law.