Employment Issues

“Personal and carer’s leave calculation uncertainty causes Fair Work Ombudsman to issue disclaimer”

Following the decision of the Fair Work Commission (FWC) in Mondelez Australia Pty Ltd [2018] FWC 2140 (Mondelez) and more recently in The Australian Workers Union v AstraZeneca Pty Ltd [2018] FWC 4660, there has been some uncertainty in the accrual and taking of personal / carer’s leave.

In Mondelez, the FWC refused a request to refer an issue regarding the interpretation of the entitlement of 10 days paid personal / carer’s leave under the National Employment Standards (NES) to the Full Bench.

The main uncertainty is the accrual and taking of a “day” of personal / carer’s leave. In particular, whether a day is equivalent to 7.6 hours per day, or equivalent to the hours customarily worked by an employee (which will be greater for employees who work more than 7.6 hours per day).

An application has now been filed to have the matter referred to a Full Court of the Federal Court of Australia.

In the meantime, the Fair Work Ombudsman (FWO) has qualified its online advice in relation to the calculation of personal / carer’s leave by placing notices on its website advising users that the issue is currently the subject of legal proceedings and that individuals and organisations may wish to seek their own legal advice.

Understandably, as the entitlement to personal / carer’s leave is one of the NES, there is a pressing need for clarification on the issue. We will keep you updated with further developments.

“NSW introduces offence of publicly threatening or inciting violence”

The Crimes Amendment (Publicly Threatening and Inciting Violence) Act 2018 (NSW) introduced a new offence to the Crimes Act 1900 (NSW) of intentionally or recklessly threatening or inciting violence toward another person or group of persons by a public act on the grounds of:
race;

religious belief or affiliation;

sexual orientation;

gender identity;

intersex status; or

HIV/AID status.
A public act is defined to include any form of communication, including communicating through social media, to the public. The offence attracts maximum penalties of $11,000 or three years’ imprisonment for individuals or $55,000 for corporations.

 

Industrial Issues

“Full Court finds that time before or after a shift is not “break” time for the purposes of right of entry”

Construction, Forestry, Maritime, Mining and Energy Union v BHP Billiton Nickel West Pty Ltd [2018] FCAFC 107

Executive Summary
The time before or after a shift is not considered a meal break and does not constitute a form of “other break” for the purposes of the right of entry provisions of the Fair Work Act 2009 (Cth) (FW Act).

Background
In October 2015, two officials from the CFMEU notified the employer that they would be exercising their rights of entry as permit holders under the FW Act and would be attending the employer’s premises to hold discussions with employees whose industrial interests they represented.

The employer’s facility operated 24 hours per day, with day shift workers commencing work at 6.00am.

The CFMEU officials advised the employer that they intended to hold discussions between 5.15am and 6.30am as well as during crib breaks and at meal times.

The employer’s Employee Relations Manager wrote to the CFMEU officials advising that, as there were no meal breaks or other breaks for employees in the period 5.15am to 6.30am, they would not be entitled to exercise their right of entry to hold discussions at that time. However, the CFMEU were advised of other break times, which included smoking breaks at 9.00am and 3.00pm and lunch at 12 midday.

The CFMEU officials asserted that they were entitled to meet with employees before the start of their shift at 6.00am.

The employer disagreed.

The CFMEU officials presented at the employer’s premises to exercise their right of entry at 5.00am on the day in question as foreshadowed, but were refused entry. They later returned at about 9.00am, when the first break was scheduled, and were granted entry to hold discussions with employees.

In March 2017, the CFMEU commenced proceedings against the employer seeking the imposition of penalties and declarations that the employer and certain employees had contravened the FW Act by refusing entry to the CFMEU officials.

The relevant provision of the FW Act, s490(2), states that a permit holder may hold discussions with employees “only during mealtimes or other breaks”.

The CFMEU argued that time before a shift was a break for the purposes of this section and was, therefore, a time at which permit holders were allowed to meet with employees.

The employer disagreed and argued that the ordinary meaning of “break” was a temporary stoppage in work, which could not occur before work had actually commenced.

The matter was heard in the first instance by a single judge of the Federal Court of Australia who decided that there was no contravention of the FW Act and that time before a shift was not a “mealtime or other break”.

Federal Court of Australia Full Court Decision
The CFMEU appealed the decision of the primary judge to the Full Court.

The Full Court examined the various statutory interpretation arguments put forward by the parties.

The CFMEU maintained its position that a break includes time before and after a shift as this time is a break between working periods and therefore is capable of falling within the definition of a break.

The employer argued that this could not reasonably be accepted as the intention of the relevant section of the FW Act. The employer claimed that, in context, the term “other breaks” is intended to mean breaks like mealtime breaks not breaks between shifts.

The Full Court applied established rules of statutory interpretation and held that the term “other breaks” in s490(2) of the FW Act is not intended to capture periods before or after shifts.

What can your business learn from this decision?
This decision provides employers with clarity around the times during which permit holders, as defined in the FW Act, are entitled to meet with employees for the purposes of holding discussions.

This decision is authority for the position that the time before or after a shift is not a “break” in work and is therefore not a time during which permit holders can exercise their right of entry to hold discussions.

“Federal Court confirms need for particulars to be specified on right of entry requests”

Australian Licenced Aircraft Engineers Association v Qantas Airways Ltd [2018] FCA 1065

Executive summary
The Federal Court of Australia (the Court) has recently confirmed the need for permit holders to not only identify the suspected contraventions but to specify the particulars of the suspected contraventions when seeking to exercise rights of entry.

Background
In December 2015, Qantas Airways Limited undertook a review of the number of its surplus licenced aircraft maintenance engineers, which concluded that there was a surplus of 46.5 full-time equivalent positions. Following this review, Qantas determined to implement a “leave burn” program pursuant to clause 60 of the relevant enterprise agreement by which it could direct employees to take annual and long service leave (as well as offer voluntary redundancies) to manage any surplus prior to declaring any positions redundant.

Qantas notified the Australian Licenced Aircraft Engineers Association (the Association) of its conclusions in January 2016, to which the Association responded that it believed that Qantas had contravened its consultation obligations pursuant to clause 47 of the agreement.

The Association was concerned that:
the review undertaken by Qantas was erroneous as there was not a surplus of employees and it had received accounts from its members that new work was being sourced yet the surplus was not being reduced; and

Qantas had failed to consult with the Association prior to making any decision about the necessity for the implementation of the “leave burn” program.
In June 2016, Mr Purvinas, the Federal Secretary of the Association, provided notice to Qantas that he wished to exercise his right of entry to Qantas’ premises and seek access to documents related to suspected contraventions of clauses 47 and 60 of the agreement. The notice provided particulars as to why he believed Qantas had breached clause 60 but did not specify why he believed Qantas had breached clause 47.

Despite Qantas’ position that they were not required to allow him access to the premises or the requested documents on the basis that he had not clearly specified the particulars of the suspected contraventions, they allowed him to enter the premises but refused to provide him with any of the requested documents as they were not “directly relevant” to the suspected contraventions.

The Association commenced proceedings seeking declaratory relief and pecuniary penalties against Qantas on the basis that it had contravened sections 482 and 502 of the Fair Work Act 2009 (Cth) (FW Act).

Decision
The Court considered only whether the Association had specified particulars in relation to the suspected contravention of clause 47 as required by section 518(2)(b) of the FW Act, noting that Qantas had conceded that the Association had specified particulars in relation to the suspected contravention of clause 60 of the agreement.

In this regard, the Court found against the Association and confirmed that the entry notice did not comply with the FW Act. It noted that the Association provided no specification as to the facts, matters or circumstances relied upon to form the belief that there had been a suspected contravention of clause 47 and that the Association had failed to particularise exactly what it believed Qantas had failed to consult on. Essentially, it had failed to provide Qantas with any notice as to what the Association believed did not happen or should have happened which gave rise to the suspected contravention.

The Court stated that there is a “degree of precision” required in the content of entry notices as set out in the FW Act, noting that section 518(2)(b) explicitly uses the term ‘specify’ and identifies what is to be specified, namely the ‘particulars’ of the suspected contravention. The basis for such precision according to the Court is not only to require the permit holder to focus attention on the particulars that go to the suspected contravention but also to enable the occupier/employer (whose common law rights to determine who may enter and remain on their property are being displaced) to make an informed decision as to whether the statutory right of entry is being lawfully exercised or whether the permit holder is acting in excess of that right.

The Court also considered that the lack of clarity surrounding what exactly the Association believed Qantas should have consulted about meant that the suspicion itself could not have been, objectively, reasonably held by Mr Purvinas when he sought to exercise his right of entry.

Finally, the Court found that the Association had failed to establish that any of the documents sought were “directly relevant” to the suspected contravention of clause 47 and had only established that some of those documents were “directly relevant” to the suspected contravention of clause 60. According to the Court, it was not for Qantas to decide whether some documents were requested in compliance with the FW Act and some were not.

The proceedings were therefore dismissed.

What can your business learn from this decision?
Unions seeking entry to an employer’s premises on the basis of a suspected contravention must provide a notice of entry in accordance with the FW Act. This includes specifying what the suspected contravention is and the facts, matters and circumstances that form the basis of the suspected contravention.

Employers should have procedures in place to verify that union representatives have complied with the FW Act prior to them being granted access to the premises or any documents. Employees who are likely to encounter such requests (including managers and front-of-house staff) should be trained in such procedures.

Bullying, Harassment and Discrimination

“Employer pays $20,000 for directing conspiracy theorist to take sick leave”

Stefanac v Secretary, Department of Family and Community Services [2018] NSWCATAD 106

Executive Summary
An employee who showed a keen interest in conspiracy theories has been awarded $20,000 in compensation after the NSW Civil and Administrative Tribunal (NCAT) found that her employer unlawfully discriminated against her by directing her to take sick leave amidst concerns about her mental health.

Background
The employee was a child protection case worker employed by the Department of Family and Community Services (the Employer).

In mid-2016, two co-workers of the employee separately reported to their manager conversations that they had had with the employee in which she became animated whilst discussing various conspiracy theories.

The employee had allegedly made statements referring to a “Large Hadron Collider” that was shutting down the atmosphere and other planets and meteorites that were going to hit Earth – events that the employee believed were being hidden by the government and world leaders. The employee had also expressed her belief in “fallen angels” that existed on Earth and had created “giants” with humans. The employee denied making only some of the alleged statements.

Upon hearing about these conversations, the employee was directed to take sick leave until her treating doctor confirmed she was well enough to return to work. The employee’s treating doctor promptly provided the requested evidence.

The employee claimed that she was unlawfully discriminated against on the basis of an assumed mental illness because she was subjected to a detriment i.e. directed to take sick leave. In response to the employee’s claim, the Employer argued that it held genuine concerns about the employee’s state of mind and that, given the nature of her work, it considered the matter was serious enough to require immediate action.

The Employer argued that it would have issued the same direction to a hypothetical employee who had the same conversation about conspiracy theories and was not assumed to have a mental illness.

Decision
The NCAT found that the Employer had directly discriminated against the employee on the ground of an “assumed mental illness”. Under the Anti-Discrimination Act 1977 (NSW) (AD Act), a disability also includes past, future or presumed disability.

However, the NCAT noted that this conclusion was reached not by any deficiency in the Employer’s submissions but by the incompatibility of assumed mental illnesses with the relevant test to determine whether direct discrimination has occurred.

The “differential treatment” test requires that “the treatment of the complainant must be less favourable than the treatment which was or would have been afforded to a person [without the disability] and that treatment must have occurred in circumstances which are the same or not materially different”.

In this particular case, the difficulty was that the employee did not suffer from the assumed mental disability. It therefore followed that a comparison could not be made between two individuals if neither of them had the disability. The NCAT considered that, inevitably, the manager would have assumed that a different employee who had the same animated conversations about conspiracy theories would have the same mental illness.

The Employer was ordered to pay the employee $20,000 in damages taking into account that the direction materially contributed to the employee’s anxiety/depressive order.

What can your business learn from this decision?
This case demonstrates the potential difficulties employers may face when required to defend any action taken in relation to an employee whom it “assumes” has a mental illness, particularly if it does not have any persuasive evidence to support that assumption (regardless of how genuine the assumption is).

When concerns are raised about an employee’s mental health and/or state of mind, employers should take particular care to ensure that they have all of the necessary facts before taking any action that might adversely affect that employee.

 

Unfair Dismissal / Adverse Action

“FWC Full Bench confirms that medical evidence provided after the fact will not invalidate a reason for dismissal”

Hyde v Serco Australia Pty Limited T/A Serco Australia Pty Limited [2018] FWCFB 3989

Executive Summary
The Full Bench of the Fair Work Commission (FWC) refused permission to appeal to an employee who argued that medical evidence prepared after his dismissal should be accepted by the FWC as invalidating his employer’s reason for dismissing him.

Background
The employee was employed as a case management custodial officer in a prison in Western Australia.

The employee had experienced pain and stiffness in his ankle and, in 2016, he underwent surgery to fuse his ankle joint.

Whilst recovering from the surgery, the employee was provided with restricted duties. After a number of months, the employer requested the employee provide information from his treating doctor as to his fitness to return to his substantive duties.

The employee provided the employer with a medical certificate from his treating specialist which stated that he was “fit for work (full duties)”. The employer formed the view that this medical certificate did not provide an adequate amount of detail to satisfy it that the employee was able to return to his previous duties.

The employee continued to work restricted duties.

About two months later, the employer arranged its annual Defensive Equipment Techniques Training for employees. The employee was required to submit a physical readiness form in advance of the training. The employee declared on the form that he was not fit to run one kilometre and so the employer determined that is was necessary to have the employee’s treating physician complete a medical report addressing the employee’s fitness to perform his duties as well as the training.

The employer received a medical certificate from the employee’s general practitioner stating that the employee “will be fit to continue his usual occupation as detailed in his job description – as case management officer, he will be able to go through the defence and control training and defence and control-in field”.

With the employee’s permission, the employer sought further information about the employee’s fitness for work from his treating specialist, who was provided with a range of documents concerning the employee’s role and its requirements.

The treating specialist provided a report in response to the employer’s request which relevantly stated that:
the employee would find running or sprinting difficult because his ankle joint was completely fused;

the employee’s difficulty in running or sprinting may be taken to mean that he could not perform his pre-injury duties to 100%;

in the case of an emergency, the employee would need assistance from his colleagues as he would be unable to run or sprint on his fused ankle joint;

an additional employee should be around to respond to emergencies and in situations where defensive movements are involved.

In response to this medical report, the employer wrote to the employee and provided him with the opportunity to show cause as to why his employment should not be terminated on the basis that he could not perform the inherent requirements of his role.

The employee responded in writing, but the employer did not consider that his responses adequately addressed the issues raised in the medical report or provided reasons as to why his employment should not be terminated.

The employee’s employment was terminated in September 2017.

The employee subsequently lodged an unfair dismissal claim with the FWC in October 2017.

In November 2017, after the unfair dismissal application was lodged, the employee consulted another specialist, Dr White. Dr White provided a report in January 2018, which the employee tendered as evidence to the FWC in support of his case that there was no valid reason for his dismissal.

In short, Dr White’s report supported the position that the employee was fit to perform the full duties of his position.

The matter was heard in the first instance by a single Commissioner of the FWC. The Commissioner found that medical evidence based on the examination of the employee some two months after the dismissal should not be considered in an assessment of whether there was a valid reason for the termination.

The Commissioner held that the employer was entitled to rely on the information available to it at the time of its decision to terminate the employment and that that decision should not be invalidated by medical evidence provided after the fact during the course of proceedings.

Ultimately, the Commissioner held that the dismissal was not unfair and the employee’s claim was rejected.

Fair Work Commission Full Bench Decision
The employee appealed the first instance decision to the Full Bench of the FWC.

The employee set out numerous grounds for the appeal, including that the Commissioner in the first instance erred by finding that the medical evidence of Dr White should not be considered in determining whether a valid reason for dismissal existed.

The Full Bench held that it is possible for evidence that has surfaced after a dismissal to be relevant to a valid reason for dismissal, but only in circumstances where that evidence speaks directly to circumstances as they were at the time of the dismissal.

In the present case, Dr White did not examine the employee until some two months after the dismissal and therefore, his evidence was not based on the circumstances as they were at the time of the dismissal.

Accordingly, the Commissioner in the first instance did not err in failing to give weight to Dr White’s evidence (though the Full Bench applied slightly different reasoning, the outcome was the same).

The Full Bench dismissed all the grounds of appeal proffered by the employee and refused permission to appeal.

What can your business learn from this decision?
Employers are within their right to rely on information available to them at the time of making a decision regarding an employee’s ongoing employment. Of course, all information and evidence available should be carefully weighed before reaching a final conclusion.

In situations where evidence emerges after a dismissal has taken place, that evidence will only be relevant if it concerns that facts and circumstances as they were at the time of the dismissal.

“Employer took adverse action against employee for speaking to FWO Inspector”

Fair Work Ombudsman v NSW Hotel Management Services Pty Ltd & Ors (No 2) [2018] FCCA 1935

Executive Summary
The Federal Circuit Court of Australia (the Court) held that an employer took adverse action against two employees when it threatened to dismiss one employee after she spoke to a Fair Work Ombudsman (FWO) Inspector and directed another employee to under-record his hours of work.

Background
NSW Hotel Management (the Employer) operated motels at three locations in regional New South Wales and Victoria. The FWO commenced proceedings against the Employer and its two directors alleging multiple contraventions of the Fair Work 2009 (Cth) (FW Act) including allegations that it had underpaid four employees on subclass 457 visas for varying periods between November 2012 and January 2015.

The FWO also alleged that the Employer took adverse action against:
An employee by threatening to terminate the employee’s employment after the employee answered queries made by an FWO Inspector during the investigation into the underpayments.

The FWO alleged that the employee had exercised a workplace right by answering the queries of the FWO Inspector and the Employer took adverse action by threatening, “you will all be terminated”.

Another employee when he was directed to under-record his hours of work. The FWO claimed that the director gave the employee a notebook to complete his timesheets and directed him to under-record his hours of work.

The FWO submitted that this direction was adverse action because it injured the employee in his employment and altered the employee’s position to his detriment.

Decision
The Court held that, in speaking to the FWO Inspector, the employee exercised a workplace right to participate in a process or proceeding under a workplace law or workplace instrument, being the investigation conducted by the FWO.

The Court was not satisfied that the Employer had rebutted the presumption under section 361 of the FW Act (i.e. that the employer took adverse action and had the onus of proving that action was not taken for an unlawful reason).

Consequently, the Court found that the Employer, through the conduct of the director, took adverse action against the employee in threatening to dismiss the employee because she exercised a workplace right.

In relation to the second allegation of adverse action, the Court again found that the Employer failed to rebut the presumption and so held that the direction to the employee was adverse action that would have the effect of preventing the employee from exercising a workplace right to seek proper compensation for hours he worked.

The director was also found to have knowledge of, and to have been directly and indirectly involved in, the adverse action and accordingly was held to be accessorily liable for the contraventions of the FW Act.

What can your business learn from this decision?
Under the FW Act, adverse action includes the threat to take action against an employee because that person has a workplace right, exercised a workplace right, proposes to exercise a workplace right or to prevent the exercise of a workplace right.

FWO Inspectors have powers under the FW Act, including the power to interview employees and inspect and make copies of records. Penalties apply for intentionally hindering or obstructing an FWO Inspector or providing false or misleading information and so it is important that employers make every effort to cooperate with requests.

The decision is also a reminder to employers about the need to have evidence in order to rebut the presumption that adverse action was taken for an unlawful reason.

Modern Awards

“New entitlement to unpaid family and domestic violence leave introduced to modern awards”

In March 2018, the Full Bench of the Fair Work Commission determined to introduce an entitlement to five days of unpaid leave for family and domestic violence reasons for all award-covered employees.

From 1 August 2018, all modern awards were varied to insert the model term giving effect to this new entitlement.

What is the entitlement?
All modern award-covered employees, including casual employees, now have an entitlement to five days of unpaid leave to deal with family and domestic violence. The leave may be accessed in single days, in one whole period or, by agreement, for a period of less than a day. Further, an employer and employee may agree that an employee can take more than five days’ unpaid leave.

The leave entitlement is available in full and immediately every 12 months of service (that is, it does not accrue throughout the year) but employees cannot accrue the leave from year to year.

This unpaid leave may be taken by an employee if they are experiencing family and domestic violence and need to deal with the impact of family and domestic violence in circumstances where it is impractical for the employee to do so outside of their ordinary hours of work. Examples of reasons given in the model term for accessing the leave include attending to urgent court hearings or making arrangements for their safety or the safety of a family member.

A family member is defined to mean:
a current or former spouse or de facto partner of the employee;

a child, parent, grandparent, grandchild or sibling of the employee; or

a child, parent, grandparent, grandchild or sibling of a spouse or de facto partner of the employee; or

a person related to the employee according to Aboriginal or Torres Strait Islander kinship rules.

Notice and evidence requirements
An employee wishing to access this leave must, as soon as practicable, give notice to their employer. This notice may be given after the leave has started. The employee is also to advise the employer how long they will be on leave or are expected to be on leave.

If required by the employer, the employee must give evidence that would satisfy a “reasonable person” that the leave was taken to deal with family and domestic violence. This evidence may include police or court documents or a statutory declaration.

The model term requires employers to take steps “as far as it is reasonably practicable” to ensure that the notice and evidence given is treated in a confidential manner. The model term notes that any information provided by an employee about family and domestic violence is sensitive in nature.

Acknowledging the difficult position this poses for employers, the model term provides that employers should consult with such employees regarding how such information is to be handled given the employers’ legal duties and obligations in relation to ensuring the health and safety of all their employees.

Importantly, however, employers are not prevented from disclosing such information if the disclosure is required by law, or is necessary to protect the life, health or safety of the employee or others (including fellow employees).

Considerations for employers
When placed on notice about domestic violence issues, employers have the delicate task of balancing care and support for the affected employee as well as protecting the health and safety of all of their employees where there is the risk that the violence or domestic issue may find its way into the workplace.

For example, the partner of the employee attending the workplace seeking out the employee and threatening or actually doing harm (causing injury or death) to that employee and/or fellow employees (sadly an all too familiar news story in modern times).

Employees and managers should be advised, by way of a training and a workplace policy, of the process to be followed to request/access this leave as well as how issues of confidentiality will be balanced with safety obligations to all employees.

Employers should also arrange for training to be provided to managers so they are equipped to handle requests for this type of leave on both a practical and emotional level.

Please contact us if you would like our assistance with preparing a Family and Domestic Violence Leave policy and/or training.

Workers Compensation

“Employer found negligent in failing to separate worker with violent criminal history prior to physical assault”

Colwell v Top Cut Foods Pty Ltd ACN 010 650 281 [2018] QDC 119

Executive Summary
The Queensland District Court (QDC) has found Top Cut Foods Pty Ltd (the Employer) was negligent in failing to separate two co-workers before a physical assault occurred in its workplace, ordering it to pay almost $600,000 in damages to the injured worker.

Background
These proceedings concerned a physical assault committed by an employee of the Employer (Mr P), against another employee, Mr Colwell (the Worker), on 20 January 2014 whilst in the workplace. There was no dispute that Mr P had physically assaulted the Worker, however, the Worker claimed that the Employer had failed to take all reasonable steps to prevent the assault and was, as a result, liable for the injuries he sustained.

The co-workers were employed by the Employer as knife hands/butchers in its food processing plant. On 20 January 2014, they were involved in a heated verbal exchange. As a result, their supervisor directed them to attend the office (an adjacent store room). On the way to the office, Mr P attacked the Worker, initially from behind, punching him numerous times in the back of the head and the face until he was physically restrained by two other co-workers.

The Worker sustained physical injuries and was on workers’ compensation for a period before ultimately returning to work. His employment was dismissed in May 2014 for reasons unrelated to the physical assault.

The Worker developed Post-Traumatic Stress Disorder which he claimed arose as a result of the Employer’s failure to take reasonable steps to prevent the physical assault, despite being aware that Mr P had a history of violence.

In this regard, Mr P had previously been convicted of doing grievous bodily harm with intent to do grievous bodily harm as well as occasioning actual bodily harm whilst in the United Kingdom and had served four and a half years’ imprisonment as a result. Mr P had also previously been employed by the Employer both prior to and after his return from the United Kingdom. During one of those periods of prior employment, Mr P had been involved in a verbal altercation with another employee.

The Worker claimed that, during his employment, Mr P presented himself as an intimidating figure in the workplace and had a propensity for talking about his criminal history and violent tendencies to co-workers.

In December 2013, the Worker raised concerns with their supervisor about Mr P’s emotional state in the workplace and stated that he was concerned for his own safety. In the proceedings, the Worker stated that he had described him like a “ticking time bomb”.

The Worker also relied on Mr P’s evidence in the proceedings that, a few days prior to the physical assault, Mr P had approached their supervisor and requested that they be separated because they were not getting along and Mr P was “close to losing it”.

The Worker claimed that the Employer was aware of the heated verbal exchanges that had occurred between the co-workers in the lead up to the physical assault but had nonetheless failed to separate them, which resulted in the Worker’s injuries.

The Employer argued that the physical assault was not a foreseeable risk because it was not aware of the details of Mr P’s criminal history and Mr P had not been involved in any violent incidents whilst employed. It argued that the incidents in the lead up to the physical assault were not sufficient to put it on notice that there was animosity between the co-workers or that they required separation in the workplace.

Decision
The QDC was not persuaded by the Employer’s arguments and found that, in addition to being put on notice that Mr P could be violent towards the Worker, the Employer had general knowledge of Mr P’s previous behavioural problems. The QDC noted that the Employer had found those problems to be so significant that, upon being re-interviewed for a position, it had asked Mr P if he had “changed”, which the QDC found was “suggestive of a perception that there had been a necessity for change”. It was therefore foreseeable that a physical assault would occur.

The QDC found that, despite this knowledge, the Employer failed to separate the co-workers in the workplace and had further failed to separate them when they were arguing on 20 January 2014. It regarded this step as “relatively simple and inexpensive” and would have likely prevented the physical assault from occurring.

As a result, the Employer was order to pay $584,995.09 by way of damages to the Worker, comprising of general and special damages as well as past and future economic loss.

What can your business learn from this decision?
Employers should ensure that their managers and supervisors are well-equipped at listening and responding to the concerns of their workers in a timely manner, particularly those relating to the health and safety of those workers. A failure to do so may result in findings that an employer was negligent in its duty of care.

Need a laugh…

Q:  What does an angry cake say?
A:  “You wanna piece of me?”

Q:  Where do baked beans go on holiday?
A:  Cairns.

Should you require any further information or assistance, please contact our Director Shane Koelmeyer on (02) 9256 7500 or via email on sydney@workplacelaw.com.au.

Information provided in this update is not legal advice and should not be relied upon as such. Workplace Law does not accept liability for any loss or damage arising from reliance on the content of this update, or from links on this website to any external website. Where applicable, liability is limited by a scheme approved under Professional Standards Legislation.