Reasonable Management Action

Reasonable Management Action – Transfer conversation wasn’t pressure to resign: FWC

An employee who claims she was made to feel incompetent and pressured to resign has failed to convince the Fair Work Commission that she was constructively dismissed.

The Bupa Dental receptionist told FWC Deputy President Clancy that after she was rebuked for not knowing instrument names and for failing to follow infection control protocols, her manager offered to help her transfer to a quieter clinic within the company.

About a week later, the employee said her manager asked if she’d found another job and said it would be “best” if she resigned. A month after that, following an incident involving a missing tool that made her look “incompetent” in front of a dentist, she resigned via text, saying she was “unfit” to stay.

The manager’s evidence was that during a casual discussion where the employee said her last practice was quieter, the manager raised the option of relocation to a smaller practice. When the employee asked about going to a non-Bupa practice the manager said in that case, it would be better to resign. After the employee said she wasn’t resigning the manager said that was fine, and later stressed any decision to leave was completely up to the employee.

Deputy President Clancy was unconvinced by the employee’s perception of the conversation and found it didn’t directly cause her to resign. Seven weeks passed between the transfer conversation and her resignation, he noted, and the text she eventually sent was three days after the tool incident, so not written in the “heat of the moment” or when the employee was “in a state of emotional stress or mental confusion”. Having found the employee’s resignation was voluntary, he dismissed her unfair dismissal application.

Tran v Bupa Dental Corporation Pty Ltd [2018] FWC 3237 (4 June 2018)

Originally published at HR Daily.com

One of the issues with complaints of bullying and unfair dismissal claims following performance management is that staff and managers don’t really understand the difference between reasonable management action and bullying and how decisions made by management are not necessarily unreasonable just because a person doesn’t like them.

The Fair Work Act s789FD (2) states,

‘Behaviour will not be considered bullying if it is reasonable management action carried out in a reasonable manner.’

The Safe Work Australia Guide to preventing & responding workplace bullying states;

“Workplace conflict

Differences of opinion and disagreements are generally not workplace bullying. People can have differences or disagreements in the workplace without engaging in repeated, unreasonable behaviour that creates a risk to health and safety.

Some people may also take offence at action taken by management, but that does not mean that the management action in itself was unreasonable.”

Reasonable Management Action – Lesson for employers

  1. Train all of staff to understand what reasonable management action (RMA) is and the difference between RMA and workplace bullying.
  2. Train your managers to understand how to conduct performance management and provide feedback to ensure that it is consistent with RMA
  3. Have a effective mechanism to investigate complaints that may result from management action

AWPTI can assist you in these areas with;
Training for managers – http://awpti.com.au/reasonable-management-action-training/
Training for staff – http://awpti.com.au/employee-training/
Workplace Investigations – http://awpti.com.au/workplace-investigations/
Reasonable Management Action Manual – http://awpti.com.au/reasonable-management-action-manual/

 

AWPTI – workplace investigation Sydney and through-out NSW, QLD and Victoria. Workplace training national wide

Misconduct investigations, bullying investigations, harassment investigations & sexual harassment investigations, complaint investigations, grievance investigations, discrimination investigations

www.awpti.com.au
http://awpti.com.au/investigations/
http://awpti.com.au/training/

 

Why is Reasonable Management Action training important?

Complaints against managers by employees are often as a result of the employee claiming that they were bullied and/or harassed by their manager.

In general, such complaints are either as a result of;

  1. Actual bullying and harassment
  2. Management action involving performance management or feedback
  3. Other forms of management action or supervision.

Complaints against managers for sexual harassment, discrimination or other forms of misconduct are generally more specifically related to an incident or series of incidents or behaviours.

To assist managers and HR professionals we have created the Reasonable Management Action manual that is concise and easy to absorb as we realise that managers and HR professional do not have all day to read long winded publications.

The manual is not a theoretical publication but rather a guide to be used when dealing with employees and conducting of performance management. For more details or to order – http://awpti.com.au/reasonable-management-action-manual/

As the understanding of Reasonable Management Action is such a critical area for managers and HR professionals, AWPTI offers options in addition to this manual.

Face to Face Training with AWPTI Principal Phil O’Brien – The Management Essentials program is designed to assist managers to deal with employment related issues. It comprises of three sections;

  1. Reasonable Management Action,
  2. Performance Management,
  3. Dealing with Misconduct and Employee Complaint Handling for Managers

This training is recommended for all managers/team leaders/supervisors to help minimise costly and time-consuming complaints against managers – more details http://awpti.com.au/management-training/ – price on application.

Phil has delivered this training session to a large number of corporate, State and Federal government clients.

The benefit of the face to face training is that participants are expertly guided through the learning materials and also get to hear the war stories and ask questions of a highly experienced workplace investigator.

DIY training

It may be the case that you wish to deliver the training yourself but don’t want or can’t find a suitable online package.

We have clients who are based all over Australia and it is more economical for them to purchase the Management Essential Training package and deliver it themselves.

The package includes

  • A comprehensive participant workbook (over 125 pages)
  • A companion trainer workbook with additional notes, including notes on all the case studies
  • A PowerPoint presentation covering the material in the workbook
  • Regular updates to the workbook, as we update cases in Courts and tribunals as they happen

Details of the package and how to order are here – http://awpti.com.au/management-training/

For more details on workplace misconduct including bullying harassment, sexual harassment and discrimination please refer to the AWPTI Workplace Misconduct Manual – http://awpti.com.au/workplace-misconduct-manual/

AWPTI – workplace investigation Sydney and through-out NSW, QLD and Victoria. Workplace training national wide

Misconduct investigations, bullying investigations, harassment investigations & sexual harassment investigations, complaint investigations, grievance investigations, discrimination investigations

www.awpti.com.au
http://awpti.com.au/investigations/
http://awpti.com.au/training/

 

Anti-bullying laws disciplinary process

Anti-bullying laws disciplinary process – Anti-bullying laws might be used by employees facing a potentially adverse disciplinary process to delay or halt it.

Anti-bullying vs disciplinary process: Fair Work Commission asked to find the balance

A recent Fair Work Commission case demonstrated an inventive way in which the FWC’s anti-bullying jurisdiction can be used by employees facing disciplinary proceedings. It may have opened a can of worms for employers.

In Lynette Bayly [2017] FWC 1886, the FWC issued an interim order preventing her employer from taking any further actions to finalise an investigation into the conduct of an employee or to impose any disciplinary sanction on the employee arising from the investigation or to terminate the employment of the employee.

Ms Bayly had made a section 789FF “stop bullying” application to the Commission alleging she had been subject to bullying at work.  The alleged bullying included the investigation by the employer into her conduct.

Despite the application, the employer continued the investigation and, as part of that process, advised her that draft findings had been made. Ms Bayly was then stood down and directed to attend a meeting to give her response to the draft findings. The investigation would then be concluded and any disciplinary outcomes of the investigation determined.

Ms Bayly’s lawyers wrote to the employer indicating she was unfit for work for a period that extended beyond the date of the proposed meeting.  They sought agreement from the employer that it would not require her to provide a response, attend a meeting or impose any disciplinary sanction in relation of the allegations under investigation.  The employer declined, confirming its intention to proceed with the disciplinary process.

As a result Ms Bayly sought an interim order from the Commission preventing her employer from continuing with the investigation, or from taking any disciplinary action arising from it, pending the determination of the substantive bullying claim.  The interim order was sought under section 589(2) of the Fair Work Act which is in the following (simple) terms:

“The FWC may make an interim decision in relation to a matter before it.”

Can the interim order be made under these circumstances?

The employer opposed the interim order:

  • Ms Bayly had not provided a substantive response to the investigation;
  • the investigation was being conducted in a “reasonable manner”;
  • any interim order made by the Commission in the exercise of its anti-bullying jurisdiction must be directed towards preventing a worker from being bullied at work;
  • the draft findings of the investigation are adverse to Ms Bayly; and
  • if Ms Bayly were to be dismissed, she has other remedies available to her.

The employer claimed that the Commission was being asked to prospectively injunct the employer from dismissing the employee. As stated in the judgment,

 “That is, to essentially use the anti-bullying jurisdiction to step in and prevent a possible adverse action, without consideration as to whether that dismissal is justified.  The orders sought go beyond what would ordinarily be available in relation to an anti-bullying application and should not be made.”

It did not, however, say that the Commission had no power to make the order.

Commissioner Hampton started from the basis that he could only make an interim order if there is a serious issue to be tried and after determining where “the balance of convenience” lies. He then observed:

It also appears to me that the consideration of the prima facie case and the balance of convenience must be assessed having regard to the nature of the substantive application, the jurisdictional context in which the application is being considered, and the circumstances of the parties.

In a matter such as this, I also consider that the nature of the remedy provisions of s. 789FF of the Act [the anti-bullying provisions] should inform the consideration of the request for interim orders and the nature of any discretion to be exercised.  However, the purpose of the interim orders, including to preserve the capacity to advance the substantive application in appropriate circumstances, must also be considered.”

Should the interim order be made?

The next issue was looking at the particular circumstances of this case. The Commission took into consideration:

  • claims made in the substantive anti-bullying application about the retrospectivity of the conduct allegations;
  • the fact preliminary adverse findings had been reached against Ms Bayly;
  • Ms Bayly’s medical condition;
  • concerns expressed about the employer’s process and stated intention to finalise the investigation and make a decision on disciplinary action which could include dismissal of employment.

Commissioner Hampton was satisfied

“… that the s. 789FC application [the anti-bullying provision] has prima facie merit and there is sufficient likelihood of success to justify the preservation of the status quo pending further consideration and determination of the substantive matter by the Commission.  The allegations made by [the employee], if ultimately supported by evidence, would be grounds to support a finding that there was reported unreasonable conduct whilst she was at work within the meaning of s. 789FD of the Act.  Adopting the same caveat, those circumstances would also suggest that a relevant risk to health and safety arose.” 

Interestingly, a key aspect of the anti-bullying jurisdiction ‒ that no orders can be made once the employment relationship is at an end (except in very limited circumstances) ‒ was identified as,

“…a significant factor directly relevant to the balance of convenience and the exercise of any discretion”.

Commissioner Hampton recognised that circumstances might change the balance of convenience, so the interim orders might need to be reviewed.

How does this affect future disciplinary proceedings?

This decision is an interesting and concerning development, one that should be watched carefully by employers. It may well be a warning of what is to come for employers undertaking investigations and disciplinary processes.

The interim order has effectively halted (for the time being) the employer’s disciplinary process. The likely next step is the resolution of the substantive bullying claim.

Does this mean employers and employees will be in a race to the court if there is a potentially adverse disciplinary process? Commissioner Hampton did have some general words of caution for employees (or their representatives):

“given the scheme of the Act, interim orders of the nature being considered here would not be issued lightly.  The direct intervention of the Commission at such an early stage of proceedings should be exercised with considerable caution.  Further, the mere indication that a disciplinary process was involved in the complaints of workplace bullying, without much more, is unlikely to trigger the balance of convenience for such action.  Of course, each application must be considered in its own right and circumstances. 

As [the employer] contended, the Commission should be alert as to the undesirability of permitting the anti-bullying jurisdiction to simply be used to circumvent reasonable disciplinary action and its consequences.  In this case, there are some particular circumstances that have justified the making of the interim order.”

Notwithstanding Commissioner Hampton’s words of caution, it would not be surprising to see many applications of this kind in the context of disciplinary proceedings.

To put themselves in the best position to defend such applications employers should;

  • ensure any investigation is conducted fairly and objectively and does not, in the way it is undertaken, of itself constitute bullying (ie. it is “reasonable management action carried out in a reasonable manner”);
  • Consider out-sourcing bullying investigations to suitably qualified and experienced investigators.
  • Be able to demonstrate adverse consequences if a disciplinary proceeding is delayed by the making of such an interim order (including impact on other staff in the organisation and the integrity and efficacy of disciplinary processes).

Australian Workplace Training and Investigation can assist with professional and timely investigations of workplace issues such a bullying, harassment, sexual harassment, discrimination and other areas of misconduct such as Code of Conduct breaches, IT and email misuse, theft and fraud, please contact us if you require assistance on 02 9674 4279 or enquiries@awpti.com.au

AWPTI – workplace investigations Sydney and through-out NSW, QLD and Victoria. Workplace training national wide
Misconduct investigations, bullying investigations, harassment investigations & sexual harassment investigations, complaint investigations, grievance investigations

Anti-bullying laws disciplinary process

www.awpti.com.au
http://awpti.com.au/investigations/

The author Phil O’Brien is a highly experienced and skilled workplace investigator and trainer who can take the stress out of conducting workplace investigations into bullying, harassment, sexual harassment, discrimination and other forms of misconduct.

You can contact me on 02 9674 4279 or phil@awpti.com.au

This is general information only. It does not replace advice from a qualified workplace investigator in your state or territory.  It is recommended that should you encounter complaints in the workplace that you seek advice from suitability qualified and experienced workplace investigators.

Anti-bullying laws disciplinary process

Adverse action and award compliance – the cost of getting it wrong

The director of a Melbourne brothel has been ordered to pay a former receptionist compensation and penalties totalling $175,000 after subjecting a former receptionist to unlawful adverse action and failing to pay award entitlements.

In the case of Rosa v Daily Planet Australia Pty Ltd, the Federal Circuit Court accepted that the brothel’s sole director was knowingly involved in breaches and ordered that he was liable for the compensation awarded as well as personally responsible for part of the penalty.

The applicant Ms Rosa worked as a receptionist and had worked for the brothel from July 2008 until December 2011.  Ms Rosa was a single mother and had negotiated particular shifts.  Ms Rosa was paid a flat rate of pay, worked four days per week for 10.5 hours per day.  She was not paid sick leave, annual leave or other benefits beyond her hourly rate.  Further, it was noted she did not take her breaks nor was she paid applicable overtime rates.

After 3 years of employment, Ms Rosa was directed to sign an employment contract which provided that she was a casual employee.  When she challenged the proposed contract terms, her shifts were changed and she was subsequently told there was no more work for her because she didn’t have a manager’s licence that is was claimed was a requirement under the relevant legislation that the business be supervised by an approved manager at all times and Ms Rosa was only a few months away from being eligible to obtain a licence.

In the judgment, the Court noted that Ms Rosa had been employed for a significant period of time without a manager’s licence, yet when there was only two months before she could obtain a manager’s licence she was terminated for this reason.

The Court did not accept the Respondents defence who argued that the provisions of the Sex Work Act 1994 (Vic) that mandated that a brothel must at all times have an “approved manager” on site, and that the reason the Applicant was dismissed was because she did not hold a manager’s licence due to a drug offence

The Court agreed with Ms Rosa’s submissions that the termination occurred as a result of her refusal to sign the employment agreement. This agreement would have converted her employment to casual employment and she risked losing shifts she had specifically negotiated with the Respondent.

The Court found that the Respondent took adverse action in threatening to alter her employment arrangements and threatening to dismiss Ms Rosa and then subsequently dismissing her.

The Daily Planet Case should serve as a reminder to employers that they cannot terminate, threaten termination or detrimentally alter the position of the employee (such as changing an employee’s shifts) on the basis that they chose to exercise a workplace right.

It also reminds employers that the Courts will look to the “motivation” of the employer in its decision to take adverse action against another employee.

AWPTI – workplace investigations Sydney and through-out NSW, QLD and Victoria. Workplace training national wide
Workplace investigations misconduct, bullying, harassment & sexual harassment investigations

www.awpti.com.au
http://awpti.com.au/investigations/

The author Phil O’Brien is a highly experienced and skilled workplace investigator and trainer who can take the stress out of conducting workplace investigations into bullying, harassment, sexual harassment, discrimination and other forms of misconduct.

You can contact me on 002 9674 4279 or phil@awpti.com.au

This is general information only. It does not replace advice from a qualified workplace investigator in your state or territory.  It is recommended that should you encounter complaints in the workplace that you seek advice from suitability qualified and experienced workplace investigators.

 

 

 

Anti Bullying Application rejected – Reasonable Management Action.

A case of Reasonable Management Action. On 19 August 2016, the Fair Work Commission handed down a decision dismissing an order to stop bullying. This was only the seventh of its type relating the FWC’s bullying jurisdiction.

In Xiaoli Cao v Metro Assist Inc; Rita Wilkinson, the Applicant,  employed y a charity, sought orders from the FWC against her manager to stop bullying under s 789FC of the Fair Work Act 2009.

The alleged bullying conduct included overloading her, increasing her workload, requesting she perform “unreasonable” tasks, making accusations about her work ethic and demeaning her in front of her work colleagues and other allegations.

Notwithstanding steps taken following two mediation sessions, the Applicant filed a general protections claim on 12 January 2016 and made a bullying complaint to SafeWork NSW.

In exercising its jurisdiction, the FWC considered the Applicant’s evidence that her manager’s actions were not reasonable management action carried out in a reasonable manner.

The employer gave evidence that the actions taken did not constitute bullying and that, where possible, it had actioned the Applicant’s requests to address her concerns and also established measures to rebuild the work relationship between the two parties.

The Commission found that the evidence did not support allegations of unreasonable behaviour by the manager and that the employer had executed reasonable management action and also carried out fair and transparent investigations into her allegations.

This decision demonstrates how reasonable management action done in a reasonable manner will not be considered as workplace bullying.

If you are your managers are unsure about what is and what is not reasonable management action and workplace bullying, I strongly recommend you consider the AWPTI Management Essentials training program, details can be found at http://awpti.com.au/management-training/

AWPTI – workplace investigations in Sydney and through-out NSW, QLD and Victoria. Workplace training national wide
Workplace investigations misconduct, bullying, harassment & sexual harassment investigations

www.awpti.com.au
http://awpti.com.au/investigations/

The full text of the decision can be found here- https://www.fwc.gov.au/documents/decisionssigned/html/2016fwc5592.htm

Reasonable Management Action

Adverse action unsuccessful

Adverse action unsuccessful in Bayford v Maxxia Pty Ltd [2011] FMCA 202 (12 April 2011) – This case demonstrates that an employer has a right to take fair and reasonable disciplinary action against employees notwithstanding the Act’s adverse action claim provisions.

A call center operator for salary packaging company Maxxia brought an adverse action claim after being dismissed for consistently arriving late and poor work performance.

The Federal Magistrates Court applied the reasoning in the recent Full Federal Court decision of Barclay v Bendigo Regional Institute of TAFE that it was necessary to find the real reason for the employer’s conduct, by looking at all of the surrounding circumstances, as well as the employer’s subjective reasons for making the relevant decisions. The worker argued that the “real reason” for his dismissal was his family responsibilities, which he pleaded as the applicable “workplace right“.

It was accepted that the operator arrived for work on time “about half the time,” and had been issued two warnings from Maxxia about his lateness and performance.

Federal Magistrate Riley did not accept the worker’s submission and held that “it does not follow logically that [the employee’s] lateness was connected with family responsibilities.” FM Riley noted the operations manager had “sufficient reason” to dismiss the operator because of his poor quality work and frequent lateness. The Court was unable to infer in all of the circumstances of the case that the operator’s family responsibilities were a factor in the decision to dismiss him and accordingly the employee’s adverse action claim was dismissed.

Hodkinson v The Commonwealth [2011] FMCA 171 (31 March 2011)

A probationary employee of the Commonwealth Child Support Agency had her adverse action claim rejected after the Federal Magistrates Court found that her dismissal was a result of performance issues and failing to meet performance requirements.

The officer was engaged on a six-month probationary contract in July 2009, she took time off work during this time due to a bulging disc in her back. After four months, the Agency placed the officer on a Work Improvement Plan as she was failing to meet performance targets. The officer protested that the targets had not been adjusted to take account of the fact that she was working reduced hours because of her injury and complained to the Department of Human Services that she felt she was being treated in a discriminatory manner. This led to an informal inquiry which concluded that the agency had not engaged in discrimination.

After a month, the officer had a meeting with managers where the Team Leader recommended that her employment be terminated due to her failure to meet existing targets on dollar value and volume of outbound calls benchmarks set. The Agency formally dismissed the employee on 22 December 2009 on the basis that she had not met the requirements of her probation.

The Agency’s concerns about her performance included unacceptable conduct towards her peers and inappropriate handling of a case that led to a customer complaint that was “extremely serious in nature.

The officer claimed she was dismissed for making a complaint or inquiry in relation to her employment, which is one of the protected “workplace rights” prescribed in the Act. The adverse action was alleged to be:

a) dismissal;

b) injury in employment;

c) alteration of the applicant’s position to her detriment; and

d) discrimination as between the applicant and other employees.

The employee further alleged that in the circumstances her dismissal constituted:

a) disability discrimination under both the Act and the Disability Discrimination Act 1992; and

b) dismissal on the grounds of temporary absence from work because of illness or injury contrary to the Act.

The officer sought reinstatement, compensation and the imposition of a pecuniary penalty on the Agency, payable to her.

Federal Magistrate Cameron rejected the officer’s claim and accepted that the employee’s failure to meet all of the requirements of her probation was the real basis of the decision to dismiss her. FM Cameron also accepted that the officer’s sick leave and physical injury formed no part of the reason for dismissing the employee and nor did the employee’s related short-term absences.

AWPTI – workplace investigations Sydney and through-out NSW, QLD and Victoria. Workplace training national wide
Workplace investigations misconduct, bullying, harassment & sexual harassment investigations

www.awpti.com.au
http://awpti.com.au/investigations/

 

 

 Recently at the FWC – Anti Bullying matter

Anti Bullying order.

Purcell v Ms Mary Farah and Mercy Education Ltd t/a St Aloysius College

Read decision [2016] FWC 2308.

This application for an anti bullying order was made by a teacher who was also the OH&S representative at the school.

The applicant alleged that she had been bullied at work by the Principal of the College. The Principal was appointed in 2013 with a mandate from the Board of Mercy Education to effect change and arrest declining enrolment; however some staff were resistant to the change and preferred the status quo.

The applicant gave evidence that she became increasingly concerned about Mercy Education’s bullying policy and in May 2013 raised the issue of bullying and the need to update the policy.

The College’s Business Manager agreed to review the bullying policy by the end of the year however this did not eventuate; the applicant raised the issue again in April 2014. The Deputy Principal was listed in the bullying policy as the complaints officer however there was no Deputy Principal at the College, as the previous Deputy Principal had resigned in 2013 after the Principal had been appointed.

The bullying policy was finally revised and re-issued in 2015 after the applicant filed complaints in December 2014. The applicant identified a number of incidents occurring from late 2013, and continuing after her return from long service leave in mid-2015, which she maintained was repeated unreasonable behaviour by the Principal.

The Commission concluded that four of the incidents which the applicant complained about, taken together, amounted to repeated unreasonable behaviour. The Commission found that the conduct was likely to have caused the applicant distress and that the behaviour created a risk to the health and safety of the applicant. The Commission found that the applicant was bullied at work.

Lessons for employers:

  1. Ensure your policies are up to date and compliant, if you don’t have the time or expertise, get help – see www.awpti.com.au/hr-support/
  2. Investigate complaints about bullying in a timely and professional manner, if you are not sure what to do, call an expert – www.awpti.com.au/investigations/

The Commission considered what orders (if any) should be made, finding the relationship between the applicant and the Principal was an mutually tense the Commission held that interpersonal relationship disputes are best resolved through the efforts of the parties, and perhaps assisted by some form of .facilitation, dispute resolution intervention or mediation.

The Commission held that some form of reconciliation was much more likely to produce a lasting, positive improvement in the working relationship between the parties than any order could.

The Commission proposed that the parties engage with each other in a series of mediated or facilitated meetings with the aim of repairing their relationship, and engaging in a dialogue that would accommodate an ongoing professional working relationship, and a safe working environment. If the parties were unwilling to engage with each other, then the Commission advised that either party could request the expeditious hearing and determination of the question of whether orders should be made.

Lessons for employers and employees

  1. In some cases a dispute resolution invention might better option to deal with complaints than an investigation especially in matters of a she said, he said nature with little of no other evidence. Each matter must be assessed on it merits.
  2. Investigations tend to have winners and losers, a dispute resolution intervention has the potential to create a win win situation.
  3. A a dispute resolution intervention can also be a more cost and time effective solution.

If you have received a complaint and are not sure what to do, go to the Australian Workplace Training & Investigation home page www.awpti.com.au and request our Compliant Analysis Chart. The chart will assist you in deciding the best course of action to take when you have received a complaint.

AWPTI can also assist you with dispute resolution interventions – www.awpti.com.au/disputes/

AWPTI – workplace investigations Sydney and through-out NSW, QLD and Victoria. Workplace training national wide
Workplace investigations misconduct, bullying, harassment & sexual harassment investigations

www.awpti.com.au
http://awpti.com.au/investigations/

You can contact AWPTI – enquiries@awpti.com.au

This is general information only. It does not replace advice from a qualified workplace investigator in your state or territory. It is recommended that should you encounter complaints in the workplace that you seek advice from suitability qualified and experienced workplace investigators.

 

The importance of position descriptions

www.awpti.com.au/hr-support/

It is important for employers and employees to be very clear as to what are the relevant position descriptions and responsibilities for the employee’s job.

A couple of recent cases before the FWC have highlighted the need for employers to ensure that position descriptions accurately reflect the role and responsibilities of employees especially those who are paid over the high income threshold.

In the recent matter of Mitchell Graham v Globus Medical Australia Pty Ltd [2016] FWCFB 5495 before the Fair Work Commission, Mr Graham’s employment was terminated on 25 November 2015 and on 8 December 2015 he filed an unfair dismissal remedy application.  

On 24 December 2015, Globus filed its Employer Response claiming that Mr Graham’s salary exceeded the high income threshold and that he was not covered by an industrial award or agreement. There was no dispute between the parties that Mr Graham’s annual rate of earnings was above the high income threshold.

In determining the jurisdictional objection argued by Globus, the Senior Deputy President was required to determine if Mr Graham’s employment was covered by an award, which would establish Mr Graham as a person protected from unfair dismissal. Mr Graham asserted he was covered by the Commercial Sales Award 2010 (Award) as a “Commercial Traveller.”

At the hearing in the first instance Senior Deputy President Drake was satisfied on the evidence before her that Mr Graham spent a considerable amount of time away from the Globus office for a multitude of reasons including training, selling, and preparation of surgical equipment and provision of technical support. That evidence is consistent with Mr Graham’s job description.

However, Senior Deputy President Drake was satisfied that Mr Graham’s duties largely concerned the marketing and/or sales of Globus products an explicit or implicit requirement by the enterprise for an employee to give precedence to a particular task does not necessarily change the principal purpose for which that employee is engaged.

After having considered the evidence Senior Deputy President Drake was satisfied that Mr Graham was principally employed in a managerial capacity and therefore that he was not covered by the Commercial Sales Award 2010 when employed by Globus.

Mr Martin sought permission to appeal this decision; permission was refused on 2 September 2016.

A similar situation and outcome arose in Forkes v Amristar Solutions P/L [2016] FWC 5913

Lessons for employers, ensure you have clear and update position descriptions in place that set out the role and responsibility and where necessary unsure that employment contracts are consistent.

AWPTI – workplace investigations Sydney and through-out NSW, QLD and Victoria. Workplace training national wide
Workplace investigations misconduct, bullying, harassment & sexual harassment investigations

www.awpti.com.au
http://awpti.com.au/investigations/

The author Phil O’Brien, Principal of Australian Workplace Training and Investigation – www.awpti.com.au  is a highly experienced and skilled HR professional who can provide assistance with  drafting policies & procedures, position description and employment contracts, performance management and recruitment. www.awpti.com.au/hr-support/

This is general information only. It does not replace advice from a qualified workplace investigator in your state or territory.  It is recommended that should you encounter complaints in the workplace that you seek advice from a suitability qualified and experienced workplace investigator.

 

 

 

HR Support – Does your business have up to date and compliant workplace polices in place?

HR Support – In the recent case of Shane Clayton v Coles Group Supply Chain Pty Ltd [2016] Fair Work Commission found that an employee who consumed cannabis before attending work was not unfairly dismissed for breach of the employer’s ‘zero tolerance’ drug and alcohol policy.

The applicant, Mr Clayton was employed by Coles at a distribution centre his job required him to operate manual handling equipment. Coles classed the distribution centre, as a high risk environment, had a ‘zero tolerance’ drug and alcohol policy.

in January 2016, Mr Clayton was involved in a forklift incident, it was accepted that the incident was not his fault; however Mr Clayton underwent an oral fluid drug test that returned a positive result for cannabis. Further testing confirmed the on-site test result.

On 1 February 2016, Coles conducted a disciplinary meeting and provided Mr Clayton with the opportunity to show cause as to why his employment should not be terminated. After considering Mr Clayton’s response, Coles terminated his employment summarily without notice or payment in lieu.

Mr Clayton argued that the dismissal was unfair because;

  1. He was advised during the induction training that he needed to ensure that he did not smoke marijuana within 3 to 6 hours of the commencement of his shift and he had complied with this.
  2. He reasonably believed that he complied with Coles’ drug and alcohol policy by leaving a considerably longer gap between his consumption of cannabis and his attendance at work.
  3. His consumption of cannabis was linked to workplace stress and was part of his strategy to manage that alleged stress.

 

The Commission found that Mr Clayton’s dismissal did not constitute unfair dismissal because:

  1. There were valid grounds for Mr Clayton’s dismissal. The Commission concluded that it was reasonable for Coles to have a zero tolerance drug and alcohol policy that should be consistently applied because of:
  2. The nature of the workplace: a busy environment with various vehicles and machinery being operated;
  3. the work health and safety risks associated with employees working under the influence of drugs in this type of environment; and
  4. the lack of an objective test for determining Mr Clayton’s impairment.
  5. Mr Clayton was notified of the reason for his dismissal.
  6. Mr Clayton was afforded a proper opportunity to respond to the allegations. It noted that the meeting on 1 February 2016 was adjourned to allow Mr Clayton time to consider the allegations and provide a response.
  7. Mr Clayton was accompanied by a support person in discussions concerning the matters leading to his dismissal.

The Commission held that while the use of cannabis for pain relief may be considered a mitigating factor, that factor needed to be weighed up in circumstances where Coles had a confidential scheme and policy that encouraged self-reporting problems without sanctions. The Commission also found that the employee used cannabis for recreational purposes.

While the Commission also acknowledged that there were potential dangers for an employer in providing information about detection periods as this may detract from the zero tolerance message, any information provided to Mr Clayton by Coles did not provide a mitigating factor because:

  1. The window of detection was given as an indicative guide only and could not reasonably be expected to represent a guaranteed safe or reliable withholding period given the context in which it was provided.
  2. The responsibility upon an employee not to attend work with any detectable drugs in their system was clear and understood.
  3. Mr Clayton was advised that if in doubt, he should not attend for work.

The Commission found that Mr Clayton had consumed cannabis on the morning before his shift, and could not be confident that his system would be clear of the drug when he attended work. He was therefore, at best, recklessly indifferent to his potential to breach the zero tolerance policy, and any confidence to the contrary could not be soundly based.

While the Commission held that the lack of notice or payment in lieu of notice would usually be a factor strongly supporting a finding that the dismissal was unfair, this was not decisive here. This was because Mr Clayton had misled Coles about the timing of his consumption of cannabis and could not have legitimately relied upon the indicative window of detection.

Lessons to be learned for employers

  • This case highlights the importance of having a comprehensive drug and alcohol policy that is consistently applied.
  • It is advisable to provide employees with training that clearly outlines their responsibilities in relation to workplace expectations and behaviours
  • Get good HR Support

If you organisation does not have up to date and complaint workplace polices in place and training for your employees, please contact AWPTI and allow us to assist you with HR Support – http://awpti.com.au/hr-support/

AWPTI – workplace investigations Sydney and through-out NSW, QLD and Victoria. Workplace training national wide
Workplace investigations misconduct, bullying, harassment & sexual harassment investigations

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The author Phil O’Brien is a highly experienced and skilled workplace investigator and trainer who can take the stress out of conducting workplace investigations into bullying, harassment, sexual harassment, discrimination and other forms of misconduct.

You can contact me on 0409 078 322 or phil@awpti.com.au for HR Support

This is general information only. It does not replace advice from a qualified workplace investigator in your state or territory. It is recommended that should you encounter complaints in the workplace that you seek advice from suitability qualified and experienced workplace investigators.