CONGRATULATIONS
Congratulations to Sydney FC’s Alex Brosque and Simon Colosimo who have been named in the Socceroos 23-man squad for the upcoming AFC Asian Cup 2011 Qualifier against Kuwait in Kuwait City on 6 January 2010.

Their selection is a fine reward for their outstanding form which has contributed to Sydney FC’s 2nd place on the A-league table.

WORKPLACE RELATIONS
Award Modernisation Complete
Through publication of the Stage 4 modern awards in early December 2009, the Australian Industrial Relations Commission (AIRC) has now completed the final step in the award modernisation process, in preparation for 1 January 2010 when the Federal Government’s new industrial relations system becomes fully operational.

The modernisation process is one that has fundamentally reshaped Australia’s employment safety net.  The AIRC has replaced State and Federal awards covering 93 industries and occupations with 122 modern awards.

A key issue which has been clarified by the AIRC in its Stage 4 decision is the coverage clause in the new Miscellaneous Award.  The additional paragraph inserted into this clause states:

The award does not cover those classes of employees who, because of the nature or seniority of their role, have not traditionally been covered by awards, including managerial employees and professional employees such as accountants and finance, marketing, legal, human resources, public relations and information technology specialists.

To access the Stage 4 decision click here.

Transitional Provisions
On 3 December 2009 the Full Bench of the AIRC handed down a decision on transitional provisions to be included in Modern Awards to allow employers and employees to move from pre-Modern Award terms and conditions to those contained in the Modern Awards.

In an earlier decision of 2 September 2009, the AIRC decided on model transitional provisions which are included in almost every Modernised Award. 

The model transitional provisions include a model commencement clause and a model phasing schedule.

The effect of the transitional provisions is that while the Modern Awards begin operation on 1 January 2010, the new classifications and minimum wages contained in them do generally not commence until the first pay period on or after 1 July 2010.

The model phasing schedule sets out detailed arrangements for phasing in changes in relation to minimum wages and loadings.  The arrangements allow phasing in the changes in five equal instalments which end on 1 July 2014.  The phasing in schedule allows employers time to introduce the new allowances / penalties without causing great economic stress to their business.

Fair Work Information Statement
The right of all employees to receive a Fair Work Information Statement (the Statement) is one of the 10 minimum standards in the NES.

From 1 January 2010, all employers covered by the Federal workplace relations system have an obligation to give each new employee a Statement before, or as soon as possible after, the employee begins employment.

The Statement contains information about:

• the NES
• modern awards
• agreement making
• individual flexibility arrangements
• general protections
• termination of employment
• right of entry
• the Fair Work Ombudsman and Fair Work Australia

A copy of the Statement can be accessed by clicking here.

EMPLOYMENT
Dismissal of Injured Employee was Valid but the Process was Unfair

A long-haul truck driver was injured in a work-related motor vehicle accident in 2005 while employed by Booth Transport Pty Ltd (Booth).

The employee returned to work after receiving workers compensation to resume his driving duties.  Booth made arrangements to ensure the employee was assisted with loading and unloading his truck when he travelled to the locations of clients.  They also took steps to minimise his “depot to depot” driving work, which involved driving from the Sydney depot to the Brisbane depot.

In late June / early July 2009, Booth’s workers compensation insurer determined that it no longer had any continuing obligation to the employee arising from his injury and had reached a settlement under the road accident compensation scheme.  After this, Booth reviewed the employee’s contract of employment and whether the employee could perform the inherent requirements of his job.

Booth forwarded a copy of the employee’s job description to JobFit Medical Services (JobFit) to review and provide details as to the physical requirements needed to fulfil the role.  JobFit then arranged medical appointments for the employee to attend. 

On 11 July 2009 Booth received a medical report from JobFit which stated that the role of the driver was “…beyond the safe capacity…” of the employee.  Booth’s human resources manager wrote to the employee in July 2009, which was received by the employee on 27 July 2009 stating “…Based on Dr Drew’s report we have reached the conclusion that you are not fit for the inherent requirements of a driver, the position that you were substantively employed in.  We therefore put you on notice that in the absence of any evidence to the contrary of a conclusive nature that you are fit to perform the duties of a truck driver on a full time basis, without placing yourself or others at risk, we will have no option but to terminate your employment.”  The employee was asked to provide a full clearance to resume his pre-injury duties by 31 July 2009.

The employee sought an extension of 14 days to provide the requested documentation.  An extension was provided until 4 August 2009.

On 3 August 2009 the employee provided a medical certificate from his treating doctor which stated that he “…will be fit to drive a truck from 3/8/09.”

Booth’s human resources manager wrote to the Applicant on 4 August 2009 stating “…Unfortunately you have failed to provide any evidence of a conclusive nature as requested.  In the absence of the requested information and based on Dr Drew’s report the conclusion has been made that you are not fit to fulfil the inherent requirements of a driver, the position that you were substantively employed in.”  His employment was terminated with immediate effect.

The employee lodged an unfair dismissal application with Fair Work Australia (FWA).  Commissioner Raffaelli stated that “…in general, the inability of an employee to fulfil the inherent requirements of a job provides a valid reason for termination.”  However, in this case, he determined that there was an insufficient basis for Booth to be satisfied that the employee could not perform the required work for the following reasons:

• the interim report provided by JobFit was “unsatisfactory” in that it was not signed by the examining physician, nor did it name the assessing doctor;
• Booth did not inform the employee to obtain a more comprehensive report when it received his “insufficient” medical certificate;
• Booth did not forward to the employee or his treating doctor information regarding the inherent requirements of his job, thereby failing to inform the driver of his specific obligations;
• Booth’s urgency was not driven by operational reasons; and
• Booth did not discuss with the employee the needs of the business and his shortcomings and failed to provide meaningful alternative advice.

Commissioner Raffaelli also determined that the employee was not given the opportunity to put anything as to why his employment should not be terminated.  Further, there was no evidence that the arrangements put in place by Booth to accommodate his injury were “burdensome.”

Commissioner Raffaelli found that the employee had been unfairly dismissed pursuant to section 385 of the Fair Work Act 2009 (Cth).

The employee was awarded 12 weeks pay in lieu of reinstatement as Commissioner Raffaelli found it inappropriate. 

See: Keith Green v Booth Transport Pty Ltd [2009] FWA 1019 (24 November 2009)

Comments
If you are intending on terminating the employment of an injured employee, or any employee for that matter, as a result of an inability to perform the inherit requirements of the role, be sure to have sufficient evidence to support the decision. 

As demonstrated in this case, not only was the employee not provided with sufficient opportunity to respond to the medical report but he was also not informed of the inherent requirements.

Given the complexities associated with dealing with injured workers, we suggest you contact your workplace relations solicitor or Workplace Law and plan appropriately so as to minimise the risk of an unfair dismissal, unlawful termination or other proceedings being lodged. 

DISCRIMINATION / HARASSMENT
Signed Deed of Release no Bar to Discrimination Claim
In a case that is sure to surprise many employers, a recent Queensland decision has found that although the employee signed a Deed of Release, she was able to pursue her discrimination complaint.

The Queensland Anti-Discrimination Tribunal (ADT) has rejected an employer’s application to dismiss a former employee’s discrimination complaint despite the fact that the employee had signed a Deed releasing the employer from all future claims.

Australian Laboratory Services (ALS) dismissed the employee in 2008.  She had been employed since 1993 and had suffered a number of work related injuries during the course of her employment.  Prior to her employment being terminated the employee had suffered a further medical condition and was asked to remain away from work on full pay until a medical clearance was provided.

The employee was paid $9,711, which was equivalent to 12 weeks salary and the sum of $795 for outplacement services.  The payment was subject to a Deed of Release, which the employee signed.  The Deed stated “The Employee releases ALS, its officers and employees from all claims (whether known or unknown and whether arising now or in the future) relating to the matters recited, the Employment, the terms of the Employment (including notice of termination), the Proceedings and the Termination, except for claims for workers compensation, and agrees that they may plead this deed as a bar to any such claims. In this clause, ALS includes related bodies corporate of ALS as that term is used in the Corporations Act 2001.”

On 19 April 2008, two months after the termination date, the employee lodged a claim with the Anti-Discrimination Commission (ADC) alleging discrimination on the basis of impairment. 

Member Ann Fitzpatrick of the ADT stated that s. 248 of the Anti-Discrimination Act 1991 (QLD) (the AD Act) states that the ADT’s functions include “…to hear and determine complaints that the Act has been contravened.” 

Section 137 of the AD Act states that the ADC can accept a complaint from a person who had previously agreed not to make one if it considered it fair to do so.

Member Fitzpatrick stated that in drafting s.137, parliament had anticipated the need for agreements not to complain to be considered.  She stated “An express power has been given to the Commissioner to consider such agreements and importantly an express power has been given to the Commissioner to over-ride the common law effect of the agreement for the purposes of the Act.”

Further, Member Fitzpatrick stated that the ADT cannot operate beyond the terms of the AD Act where it is stated that its function is to hear a complaint referred by the ADC to determine if the AD Act has been contravened.

Member Fitzpatrick dismissed ALS’ application and allowed the employee’s discrimination complaint to be dealt with.

See: Diggles v Heery and Australian Laboratory Services Pty Ltd [2009] QADT 22 (23 November 2009)

Comments
Although this case relates to Queensland law, there are similar provisions which exist in the Anti-Discrimination Act 1977 (NSW).  In particular, section 87A of the NSW Act states that the following people can make a discrimination complaint:

• the complainant;
• a person on behalf of the complainant;
• a parent or guardian of the complainant if that person lacks the legal capacity to lodge a complaint (for example, because of age or disability),
• a representative body on behalf of the complainant; and
• an agent of any of the above.

It is therefore arguable that even if an employee signed a Deed of Release which released the employer from future claims, the NSW Act does not prevent another person, on behalf of the employee, lodging a claim.  The Deed of Release cannot bind a third person or party.

When terminating an employee’s employment it is worth remembering that a Deed of Release is not air-tight.  A Deed of Release is governed by common law and if there is a contravention of an act, it is possible that the Deed will provide little protection against a complaint as the legislation will override the common law.

That said a Deed of Release still does afford protection to an employer in most circumstances.

For further information on the effectiveness of a Deed of Release or whether a Deed of Release is required in your particular set of circumstances, please contact Workplace Law.

LOOK WHO’S FAMOUS
Michael Cherry, formerly of Trojan Workforce Recruitment Pty Limited, is now the principal of nem (Non-Executive Management) Pty Ltd.  Their services include providing assistance to organisations in achieving their business objectives through undertaking business reviews, identifying strategies and documenting agreed implementation programs.

Contact Michael Cherry for further information and a complimentary meeting on (02) 8902 1033, 0416 026 057 or by email at