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Decision

Industrial manslaughter and work health and safety, disability and reasons for dismissal

Women in sports

NEWS ALERT: FFA Matildas equal pay deal

Football Federation Australia (FFA) and Professional Footballers Australia have entered into an historic collective bargaining agreement aimed at achieving gender equity for Australia’s national football teams.

Under the deal, Matildas players will earn the same as Socceroos players, resulting in an increased annual salary from $66,000 to $100,000. In addition, both teams will receive an equal share in player-generated revenue and the same percentage of prize money from competitions. For the Matildas, this means that they will be entitled to an increased share of prize money from competitions.

Further supporting the move to gender equality, the Matildas will receive the same coaching resources and access to travel as the Socceroos, while the FFA has also agreed to review and upgrade its Parental Leave Policy to provide further support for Matildas players.

Well done to the FFA and the Matildas for this milestone achievement for women’s sport.

Industrial manslaughter and work health and safety

“Industrial manslaughter legislation to be introduced in Victoria and Northern Territory"  

The Victorian Parliament has passed legislation amending the Occupational Health and Safety Act 2004 (Vic) to make industrial manslaughter an offence.

The Workplace Safety Legislation Amendment (Workplace Manslaughter and Other Matters) Act 2019 (Vic) (Amendment Act) provides for two new indictable offences of workplace manslaughter for negligent conduct which causes the death of an employee or member of the public.

An offence will apply to organisations (including bodies corporate, partnerships and unincorporated bodies and associations) and self-employed persons and attract a maximum penalty of 20 years’ imprisonment for a person or 100,000 penalty units for a body corporate. A separate offence will apply to officers of an applicable entity, defined as a body corporate, unincorporated body or association, or partnership. For officers, the maximum penalty is 20 years’ imprisonment.

The Amendment Act provides that conduct will be negligent if it greatly falls short of the standard of care that would have been taken by a reasonable person in the circumstances in which the conduct was engaged, and it involves a high risk of death, serious injury or illness.

Similarly, the Northern Territory Parliament also passed legislation amending the Work Health and Safety (National Uniform Legislation) Act 2011 (NT) to introduce a new indictable offence of industrial manslaughter which applies to body corporates and individuals.

Under the Work Health and Safety (National Uniform Legislation) Amendment Bill 2019 (NT), an individual or body corporate commits industrial manslaughter where the person, who is under a health and safety duty, intentionally engages in conduct which breaches that health and safety duty and causes the death of an individual, and the person was reckless or negligent about the conduct breaching the health and safety duty and causing the death of that individual. The criminal standard for negligence will be applied for this offence.

The maximum penalties for this offence in the Northern Territory are life imprisonment for an individual and 65,000 penalty units for a body corporate.

We will keep you updated with further developments, including when the new laws are expected to commence in Victoria and the Northern Territory.

Disability and reasons for dismissal  

“Full Federal Court overturns finding that adverse action was taken against an employee on the basis of manifestation of mental disability"

Western Union Business Solutions (Australia) Pty Ltd v Robinson [2019] FCAFC 181

Executive summary

The Full Court of the Federal Court of Australia has upheld an employer’s appeal against a finding that it breached the general protections provisions of the Fair Work Act 2009 (Cth) (FW Act) by dismissing an employee because of his disability.

The Full Court has instead found that the employee’s disability was not the reason for the termination of the employee’s employment.

Background

The employee was employed as a Client Executive for the employer. In September 2016, the employee commenced a period of sick leave. The employee supplied medical certificates which were unspecific or stated that he was suffering from work-related stress and depression or a major depressive disorder with significant anxiety. The employee also provided WorkCover NSW Certificates of Capacity which certified him as having no capacity for any employment.

The employer made enquiries with the employee about his return to work and in January 2017, it requested that he attend an independent medical examination.

However, the employee refused to attend the appointments organised by the employer, and despite the employer advising it would confirm an appointment, no further appointment dates were provided to the employee.

In May 2017, the employer provided written notification to the employee advising that his employment was terminated. This letter was signed by the Head of Human Resources for Australia (the decision-maker) and stated that:

Given that you cannot give any indication as to when you will return to work, your unreasonable failure to cooperate with the Company’s attempts to obtain up-to-date, specialist medical advice and in light of the Company’s serious concerns about your capacity to return to work, the company has decided to terminate your employment.

The employee then lodged a general protections claim alleging that the employer took adverse action against him because of his disability, contrary to section 351 of the FW Act.

First Instance Decision

In Robinson v Western Union Business Solutions (Australia) Pty Ltd [2018] FCA 1913, Justice Flick found that the reasons for the employee’s dismissal provided by the decision-maker were:

  1. the unreasonable failure to cooperate with the employer’s attempts to obtain current specialist medical advice; and
  2. concerns about the employee’s capacity to return to work.

Flick J relied on a previous decision of Shizas v Commission of Police [2017] FCA 61 (Shizas), which confirmed that a disability included the “manifestations” of the disability. In this matter, the employee’s lack of capacity was a manifestation of his mental disability and there was no distinction between the employee’s capacity and his mental disability.

Flick J was therefore satisfied that the employer dismissed the employee because of his mental disability in contravention of the general protections provisions of the FW Act. The employer was ordered to pay the employee $140,000 in compensation and a penalty of $20,000 for breaching the FW Act.

Appeal

The employer appealed the First Instance Decision on a number of grounds, including that the primary judge erred in finding that:

  • it took adverse action against the employee because of his mental disability when it dismissed him for reasons which included its concerns about the employee’s capacity to return to work; and
  • the “manifestation” of the employee’s claimed mental disability could not be severed from his alleged disability in circumstances where the decision-maker did not know whether the employee actually had a mental disability.

The employer submitted that the primary judge erred because he assumed that the employee’s lack of capacity for seven months was a manifestation of the disability and that the decision-maker knew this. The employer submitted that there was no evidence of this; rather, the evidence was that the decision-maker did not know whether the employee was actually unwell or that his incapacity was due to the alleged medical condition - this was why the employee was to be independently medically examined.

The employer also submitted that if the employee’s incapacity was a manifestation of his disability, the evidence from the decision-maker established that she had separated the manifestation from the reasons for dismissal. The reason for dismissal was the “concerns about his capacity to return to work”. These concerns were about the employee’s claimed disability and whether his incapacity for work was real.

The employer argued that the evidence was that the decision-maker:

  • did not believe, or did not accept that the employee’s disability (including its alleged manifestation) was genuine;
  • did not know whether the employee lacked the capacity to return to work but had concerns about whether he could; and
  • did not dismiss the employee because he suffered a mental disability, which had been accepted by the primary judge.

According to the employer, the primary judge should have found that the employer did not dismiss the employee because of his disability.

The employee also lodged a cross-appeal against the damages awarded at first instance. The employee argued that it was held in Shizas that disability did not just mean a diagnosed condition, it included the manifestations of the condition and submitted that his medical condition and incapacity were the same and they could not be separated. The employee submitted that the authorities were clear that it was not necessary to have knowledge of both the manifestation and the condition.

The employee also submitted that the employer’s submissions would undermine the protective purpose of the general protections provisions of the FW Act as it would only apply if a decision-maker had full knowledge of the disability and its manifestations.

Appeal Decision

Justice Kerr noted that it was “settled law” that it was the reasons of the decision maker which were to be considered in determining whether adverse action was taken because of a protected attribute.

In this regard, Kerr J held that the decision to terminate the employee’s employment on the basis that he unreasonably failed to cooperate with the employer by attending an independent medical examination, did not contravene section 351 of the FW Act.

In relation to the other reason for dismissal, Kerr J found that there were “significant difficulties” with the reasoning of the primary judge:

  • as the primary judge had accepted that the decision-maker did not terminate the employee’s employment because he suffered a mental disability, it followed that it was accepted that the decision-maker dismissed the employee because he could not return to work and perform the inherent requirements of the role and not for any reason that included his disability.
  • not every consequence of a disability was a manifestation of a disability. The employee’s incapacity to return to work was not a manifestation but may have been a consequence of his disability.

Kerr J did not accept the primary judge’s finding that there could not be a distinction between the employee’s capacity and his mental disability. He held that Shizas could be distinguished because, in this matter, the decision-maker did not believe that the employee was not well.

Rather, he accepted that the reference to “serious concerns” were that the employee had:

  • not attended worked for seven months;
  • refused to be independently examined; and
  • not given any indication of when he could return to work,

and that it was these serious concerns that led the decision-maker to doubt if the employee could fulfil the inherent requirements of his position. He also held that there was no basis on which the primary judge could have linked these “serious concerns” to a finding that the decision to terminate the employee’s employment was because of his disability or because of a manifestation of the disability.

Kerr J found that it was not open to the primary judge to conclude that the termination of the employee’s employment was adverse action because of the employee’s mental disability in contravention of section 351 of the FW Act.

In upholding the appeal, Kerr J stated:

Mr Robinson’s disability was neither subjectively Ms Pickles’ reason for dismissing Mr Robinson, nor objectively was it what had actuated her conduct. It was not relevantly the, or a, real reason for his dismissal.

In a separate judgment, O’Callaghan and Thawley JJ found that the primary judge erred in:

  • assuming that the employee’s incapacity was part of his disability without actually identifying the disability, what it comprised of, or asking whether the decision-maker took action because of the disability; and
  • concluding that the decision-maker’s concerns were “because” of the employee’s mental disability.

O’Callaghan and Thawley JJ held that as the primary judge accepted that the evidence of the decision-maker was that she did not terminate the employee’s employment because of a mental disability, the primary judge should have also accepted that the decision-maker was concerned with the employee’s capacity to work and that the cause of the incapacity took no part in the decision-maker’s decision.

Accordingly, the employer’s appeal was upheld and the cross-appeal from the employee was dismissed. Orders were also made to set aside the orders of the primary judge.

What can your business learn from this decision?

The general protections provisions of the FW Act prohibit employers from taking adverse action against an employee on the basis of a protected attribute. This decision confirms that it is the decision-maker’s reasons for the action which will be the relevant consideration as to whether adverse action was taken for a prohibited reason.

It is important that decision-makers have clear and cogent reasons as to why a decision was made or particular action was taken in order to rebut the presumption that adverse action was taken for a prohibited reason.

 

Procedural or technical errors in enterprise bargaining

“FWC finds changes in NERR 'not minor procedural or technical errors', dismisses EA application"

Oakmoore Pty Ltd T/A EGR Extrusion [2019] FWC 7368

Executive summary

In 2018, amendments were introduced to the Fair Work Act 2009 (Cth) (FW Act) to allow the Fair Work Commission (FWC) discretion to approve agreements despite any “minor procedural or technical errors” made in relation to the notice of employee representational rights (NERR).

In this decision, the FWC held that changes to the NERR by the employer, including deleting a certain paragraph, were more than “minor procedural or technical errors”.

Background

Under FW Act, a NERR must be provided to employees in the form and with the content prescribed by the Fair Work Regulations 2009 (Cth) (FW Regulations).

If a NERR does not meet the requirements of the FW Act, the enterprise agreement is taken to have not been genuinely agreed to by employees, and therefore cannot be approved by the FWC. Previously, this requirement was treated so strictly that small mistakes, such as attaching other documents to the NERR, could result in an enterprise agreement being rejected. This caused considerable frustration for parties to agreements who would then be required to restart the entire agreement bargaining process.

In response to this frustration, the FW Act was amended in 2018 to enable the FWC to conclude that an enterprise agreement has been genuinely agreed to, notwithstanding minor procedural or technical errors in the NERR.

In this case, the employer made an application to the FWC for the approval of an enterprise agreement. Attached to the forms the employer submitted for its application was a copy of the NERR it provided to its employees.

The NERR departed from the form and content of the NERR in the FW Regulations in a number of important ways, including:

  • The NERR was on the employer’s letterhead;
  • The following paragraph had been deleted:

  • If you are a member of a union that is entitled to represent your industrial interests in relation to the work performed under the agreement, your union will be your bargaining representative for the agreement unless you appoint another person as your representative or you revoke the union’s status as your bargaining representative.
  • The NERR directed employees to speak to the HR Department rather than their “employer”;
  • Underneath the last paragraph, the phrase “Please fill in the nomination form attached” appeared; and
  • Attached to the NERR was a form produced by the employer which essentially directed employees to nominate two particular employees as their bargaining representatives.

Decision

During the course of the proceedings, the FWC invited the employer’s Human Resources Officer to explain the changes to the NERR and whether the FWC should consider those changes to be minor procedural or technical errors.

The Human Resources Officer submitted that there was no union for the employer and that the two nominated employees had been the bargaining representatives for the previous agreement. The Human Resources Officer also said that the employer had worked with the same group of employees for the last 10 to 15 years and a similar format and process had been followed in the past.

The two employees nominated as bargaining representatives were also invited to make submissions to the FWC. They said that employees had asked them whether they could get a union in the past but felt pressure from the employer not to do so. One of the nominated employees said that he had worked for the employer for 20 years and thought it was the employer’s policy not to have a union.

The FWC found that the exclusion of the paragraph regarding union representation was a significant matter, noting that queries about union involvement had been previously raised by employees and there was a perception that it was discouraged.

The FWC also found that the inclusion of the attached form had the effect of herding employees towards a position that the only bargaining representatives available to them were their fellow employees.

The FWC held that it could not be satisfied that the employees were not disadvantaged by the NERR such that it could permit the changes made by the employer.

Accordingly, the employer failed to establish that its changes to the NERR were minor procedural or technical errors and its application for approval of its enterprise agreement was dismissed.

What can your business learn from this decision?

Despite the changes to the FW Act, the FWC is still required to carefully scrutinise the NERRs. The FWC must still reach a conclusion as to whether changes to the NERR have any impact on genuine agreement to an enterprise agreement.

In this case, the changes were substantial and had the effect of limiting the employees’ understanding of their rights in relation to bargaining representatives.

Further, employers should ensure that they review their practices each time a new enterprise agreement bargaining process commences and should not rely on old versions of forms or documents. Employers should access the most current version of forms and documents online, including by accessing the most current version of the NERR through the FW Regulations.

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.

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