Australia: Workplace relations & safety

Government Bulletin summer edition – year in review
Last Updated: 17 January 2016
Article by Michael Selinger
Most Read Contributor in Australia, September 2017

Key discrimination cases from 2015

There was a raft of key discrimination cases in 2015 with several important implications and lessons for both Government and business.

How to respond – or more specifically, how not to respond - when an employee announces their pregnancy came under the spotlight last year with lessons emerging from two key cases:

Sagona v R & C Piccoli Investments Pty Ltd & Ors [2014] FCCA 875

Samantha Sagona was a salaried photographer and salesperson with Piccoli Photography. Once she informed the owners that she was pregnant, she was subjected to a raft of negative comments from them about her ability to continue to perform in her role. Several demands regarding her contract and working hours were also made. Sagona resigned, claiming that she had been constructively dismissed (i.e. forced to quit) by the business's conduct. The court found that the business had taken "adverse action" against Sagona by both dismissing her and injuring her in her employment, and one of the reasons for their actions was her pregnancy. The damages award in this case was considerable, including $164,079 for economic loss and $10,000 for distress, hurt and humiliation.

Bevilacqua v Telco Business Solutions (Watergardens) PL (Human Rights) [2015] VCAT 269

Stephanie Bevilacqua was a sales consultant with a Telstra store owned by Telco Business Solutions (TBS). Her medical practitioner recommended, on the basis of a previous miscarriage, that she reduce her hours of work from 38 hours to 28 hours per week. Her employer refused this request and Bevilacqua tendered her resignation two weeks later. Several negative comments were also made about her behaviour at work ie: taking numerous toilet breaks. After Bevilacqua made an application to VCAT under the Equal Opportunity Act 2010, the tribunal found that TBS, by its conduct, had directly discriminated against her in relation to her pregnancy and her severe morning sickness.

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Smart performance management remained a crucial consideration for businesses dealing with underperforming employees in 2015.

There have been many recent cases where it was found that employers should have dealt with performance issues more adequately through performance management before proceeding to dismissal.

Examples of successful claims against employers involve:

  • a bus driver who was dismissed without performance management for leaving a bus stop earlier than required, using his mobile phone while the bus was not parked and reading while driving the bus ?
  • a tram driver who was dismissed for serious misconduct being deliberately driving slowly to delay the tram service. The Fair Work Commission rejected that this was a valid reason for dismissal and ordered that the employee be reinstated. Despite the employer's claim that the employee's performance could not be improved, it was found the employer had failed to warn the employee about their performance which could lead to their dismissal??
  • an employer who adopted an improper approach to commencing performance management. The employee in question used inappropriate language in an exchange with his manager on his first day and appeared to get off on the wrong foot with his manager. The manager sought to commence a performance management process, however advised the employee that "it's not very pleasant and I don't recommend it for anyone". The Commissioner found that the employee had been constructively dismissed and had been unfairly dismissed ordering damages against the employer.

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And in a key case in August 2015, the ACT Industrial Magistrates Court delivered the first judgment in Australia interpreting the meaning of "officer" under the harmonised Work Health & Safety Act, which operates in all States and Territories except Victoria and Western Australia.

In the case of B McKie v Muni Al-Hasani, Kenoss Contractors Pty Ltd (in liq) [2015] ACTIC 1, the Court found that a senior Project Manager, Mr Al-Hasani, was not required to exercise the duty of care of an officer, being due diligence, because the prosecution failed to prove beyond reasonable doubt that he was an officer of the construction company, Kenoss Contractors Pty Ltd (in liquidation). Importantly, the Court held that whether a person who was not a director or company secretary could be an officer depended on assessing their role in the company as a whole rather than a particular function or project in which the individual was engaged. A distinction was drawn between people with "organisational" responsibilities and others whose responsibilities were "operational".

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What's next? Summary of the key workplace issues for 2016

Flexible working arrangements: organisations will face an increasing demand for flexible working arrangements as employees look to engage with the broader carer provisions under the Fair Work Act. Those provisions that allow requests to be made for flexibility if the employee is a recognised carer, has a disability, is over 55 years old or if they or a family member is experiencing domestic violence

Discrimination and bullying: these issues will remain a hot topic in 2016 as the number of claims have been steadily growing and the levels of compensation awarded by the courts and tribunals increasing. Organisations will have to ensure rigour in their training and supervision of staff to remove these risks and claims

Performance management: remains one of the key issues in 2016 as organisations attempt to deal with a fluid workforce market. At the macro level, organisations need to address any growth in abseentism and lack of achieving the organisations'goals. Those organisations that focus on developing a structured performance culture, including through effective performance management, will reap the benefits.

This publication does not deal with every important topic or change in law and is not intended to be relied upon as a substitute for legal or other advice that may be relevant to the reader's specific circumstances. If you have found this publication of interest and would like to know more or wish to obtain legal advice relevant to your circumstances please contact one of the named individuals listed.

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Michael Selinger
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