The Federal Court has provided reassurance to HR practitioners that it can be reasonable to dismiss a worker with incapacity to perform the inherent requirements of a role, even where that incapacity may be connected with a disability. However it’s not quite as simple as it sounds…

Extended absence due to stress and depression

In 2018, a claim was brought against Western Union Business Solutions alleging that it had contravened section 351 of the Fair Work Act 2009 (Cth) (Fair Work Act), by taking adverse action because of a physical or mental disability.

The employee was dismissed after a seven-month absence from work. The absence was supported by a series of medical certificates variously referring to a ‘medication condition’ and diagnoses of work related stress and a depressive disorder. During the extended absence, a number of requests were made requesting attendance at a medical practitioner nominated by Western Union for an independent medical evaluation. This assessment did not occur, and ultimately, on 8 May 2017, Western Union terminated the employee’s employment. The termination letter cited, among other things, the employee’s absence (including on unpaid leave), his refusal to attend a medical assessment, and ongoing concerns about the employee’s capacity to return to work.

The decision: the dismissal was based on a “manifestation” of a disability

On 30 November 2018, Federal Court Justice Geoffrey Flick found that, while the HR Manager genuinely believed that the dismissal was not because of a disability, the dismissal was motivated, in part, by the “manifestation” of the employee’s claimed mental disability. It therefore followed that Western Union had under s351 of the Fair Work Act discriminated against Mr Robinson due to his “mental disability”. Western Union was ordered to pay $140,000 and an additional $20,000 fine.

The appeal – a question of capacity to work

On appeal, the Full Court found that determined that no such discrimination had occurred. In particular, Justice Kerr noted that the HR Manager was not aware of any manifestation of a disability, and indeed did not believe that the employee was unwell.

The Full Court also rejected the argument that the executive’s incapacity was part of his disability. Rather, the Court held that a distinction can be drawn between an underlying medical condition and the incapacity that results. In doing so, the Court found that the reason for dismissal related solely to the employees capacity or willingness for work, and not because of any underlying disability.

Importantly, the Court noted:

“not every consequence of a disability which is to be regarded as a ‘manifestation’ of the disability such that the consequence is to be regarded as comprising a part of the disability. The question is what the disability is, which does not necessarily equate to what the disability causes… For example, behaviours associated with a particular mental illness might be shown to be a ‘manifestation’ of the illness (harmoniously with the definition of “disability” in the Disability Discrimination Act). However, the fact that the collection of attributes which comprise the disability result in incapacity for work would not necessarily compel the conclusion that the incapacity for work was part of the disability as opposed to being a consequence of having the disability.”

A reminder to employers

This decision is significant as it confirms that employers can lawfully dismiss an employee in circumstances where this is a question about their capacity or willingness to work, even where this is an asserted underlying medical condition. The decision shows that the Courts will draw a distinction between a disability and the consequences of that disability as it relates to the workplace.

The decision also provides cautionary reminder of the need to be mindful that a disability is more than just the ‘label’ of the condition, but also extends to the manifestations of the particular condition. For example, in the case of a depressive illness, it may well be the manifestations include symptoms such as anxiety or sleeplessness. These ‘manifestations’ cannot form part of the operative reason for decisions adverse to employee’s interests.

Western Union Business Solutions (Australia) Pty Ltd v Robinson [2019] FCAFC 181 (23 October 2019)

The information in this article is for information purposes only and does not constitute legal advice. You should obtain specific advice relevant to your circumstances.

It’s old news that volunteers are afforded many of the same ‘rights’ as workers, particularly with respect to health and safety. Expanding on this, the Fair Work Commission has determined that it has jurisdiction to deal with an application by a volunteer to stop bullying in the workplace.

There is a legal distinction between a person who is employed or contracted to perform work for financial reward and volunteers, who give their time willingly for the common good and without financial gain. However, volunteers still have standing to bring certain applications against the organisation for which they perform work.

The Fair Work Act 2009 (Cth) gives the Commission the power to issue orders to prevent ‘workers’ from being bullied in the workplace. This can include orders requiring an individual or group of individuals to stop the bullying behaviour, as well as orders relating to the conduct of the employer. In this context, the term ‘worker’ has the same meaning as in the Work Health and Safety Act 2011. Broadly, a worker is an individual who performs work in any capacity, including as an employee, a contractor, a subcontractor, an outworker, an apprentice, a trainee, a student gaining work experience or a volunteer.

Under this provision, a volunteer providing foster care in connection with Barnardos Australia has applied to the Commission seeking a stop-bullying order. The volunteer alleges he has been subjected to workplace bullying by managers at Barnardos Australia, which the charity denies.

Barnados Australia brought a jurisdictional challenge on the basis that the volunteer was not performing work for the charity. Rather, it was argued that the volunteer was performing work as a foster carer under the authority of the Director-General who was exercising the power conferred on the Director-General under section 518(2) of the Children and Young Persons Act 2008 (ACT).

In September, Commissioner Hampton determined the jurisdictional issue in favour of the volunteer. Commissioner Hampton determined that the volunteer was performing work in his capacity as a volunteer for Barnardos Australia. Accordingly, he is considered a ‘worker’ for the purposes of the Act and is eligible to bring the application.

Importantly, Commissioner Hampton noted in this jurisdictional decision:

“The statutory, contractual and practical circumstances of this case have been important and each case must be considered in its own jurisdictional context. The finding that Mr Legge is a worker for present purposes should not be confused with a finding that he is employed by Barnardos Australia or is anything other than a volunteer worker. I have also not determined whether there is any merit to the substantive application and consideration of that awaits the Commission.”

In short, watch this space.

Workdynamic Australia has significant experience in assisting not for profit organisations meet their obligations and entitlements in relation to both paid workers and volunteers. In this regard, establishing best practice policies, training and systems to support all workers is a proven risk mitigation strategy.

The information in this article is for information purposes only and does not constitute legal advice. You should obtain specific advice relevant to your circumstances.

Commentary has been rife following Israel Folau’s termination and the dismissal of a federal public servant for making anonymous tweets critical of government and opposition policies and parliamentarians. Media headlines have sensationalised the loss of free speech and labelled the decisions draconian and Orwellian and heralded warnings for employees’ use of social media.

Controversy aside, the cornerstone of the Comcare v Banerji* High Court ruling was a reasonable and clear code of conduct which set out expectations around employee conduct. In the age of prolific social media platforms, which provide anonymous individuals and sports stars with national exposure, organisations have never been more cautious about the “brand” their employees present online.

In the case of Banjeri, a public affairs officer, “she began broadcasting tweets on matters relevant to the Department, using the Twitter handle “@LaLegale”4.There were more than 9,000 such tweets, at least one of which was broadcast during the respondent’s working hours, and many of which were variously critical of the Department, other employees of the Department, departmental policies and administration, Government and Opposition immigration policies, and Government and Opposition members of Parliament.”

Banjeri originally lodged an unfair dismissal claim in 2013, arguing she was unlawfully fired from the Department of Immigration and Border Protection. While this claim was dismissed she was later successful in a workers’ compensation case claiming compensation for a psychological injury as a result of the termination of her employment. In these proceedings, the Administrative Appeals Tribunal found her dismissal was unreasonable in part because it had impeded her implied right to freedom of political communication.

Comcare appealed the Administrative Appeals Tribunal’s decision to the Federal Court, however the Commonwealth Attorney-General removed the appeal to the High Court.

On 7 August 2019, the High Court unanimously allowed the appeal. The High Court specifically noted that employees were not protected by anonymity.

“there is no reason to suppose that “anonymous” communications cannot fail to uphold the integrity and good reputation of the APS… as a rule of thumb, anyone who posts material online, particularly on social media websites, should assume that, at some point, his or her identity and the nature of his or her employment will be revealed.”

Additionally, the Court determined that the requirements of the Public Service Act 1999 (Cth) and the Australian Public Service Code of Conduct and guidance documents did not infringe on implied freedom of political communication as their intent was to achieve an apolitical public service.

The Australian Government Solicitor’s office has published a commentary of this particular case**, highlighting implications for decision makers. This landmark ruling does not provide precedent for employers to dismiss workers for comments on social media which they simply don’t like.

“The Court referred with approval to the content of various guidance documents issued by the APSC and other agencies about the proper conduct of APS employees, including guidance about the need to act consistently with the APS Values concerning an impartial and apolitical public service in the use of social media.”

Instead, this recent ruling highlights key considerations for Australian businesses when developing, implementing and enforcing codes of conduct, associated policies and guidance documents. It is not enough to make a statement around the expectations of employee behaviour in a code of conduct, without careful consideration within the legislative framework and whether such expectations are reasonable. An effective code of conduct will articulate employees’ rights and obligations within the context of their employment and specify if this extends to things such as public commentary and social media use.

Further, decision-makers who are responsible for determining whether employee behaviour breach codes need to carefully consider all of the circumstances before determining if an employee’s conduct is inconsistent with the documented expectations of the organisation.

The decision also serves a reminder that any disciplinary action must be proportionate to the nature and gravity of the misconduct and the personal circumstances of the employee in question.

Workdynamic has extensive experience in developing and reviewing codes of conduct and a keen understanding of the enforcement of these types of policies. Our application of such policies in workplace investigations affords us particular insight into how best to develop, document and deliver the expectations an organisation has of its employees.

* Comcare v Banerji[2019] HCA 237 August 2019 C12/2018

** https://www.ags.gov.au/publications/express-law/el279.html

The information in this article is for information purposes only and does not constitute legal advice. You should obtain specific advice relevant to your circumstances.

The importance of procedural fairness

A recent decision by the Fair Work Commission* assessed certain inadequacies of an investigation conducted by Mooroolbark Child Care Centre following an altercation between two child care workers. Whilst the dismissal was ultimately upheld due to the seriousness of the conduct in question, the Commission noted a number of flaws with respect to the investigation process which were considered to weigh in favour of a finding of unfair dismissal.

Commissioner McKinnon said, “In some respects, the process was orthodox. An allegation was made, [the employee] was stood down on full pay, and an investigation occurred before allegations were formally put and determined.”

However, the Commission noted that whilst the employer considered the respondent’s history of domestic violence and related mental health in deciding to dismiss her, it failed to recognise the necessary causal link between one’s prior history and present employment circumstances. The employer also failed to provide the respondent with an opportunity to put her past history into context, and as such these issues could have only been fairly considered with the input of the respondent. Denying the respondent the opportunity to address this resulted in a denial of procedural fairness.

Commissioner McKinnon also noted that other matters that arose during the course of the investigation were not dealt with by the employer on an equal footing which weighed further in favour of a finding of unfair dismissal. The Commissioner stated that this “… highlights both the importance of objectivity and the difficulty for inexperienced employers in ensuring procedural fairness for employees absent specialist advice and support.”

Applying the findings of the investigation

However, ensuring a procedurally fair investigation is just part of the approach for an organisation in mitigating risk. Understanding the findings of an investigation and how they should be applied within an employment law context in making decisions around disciplinary action are equally important.

A decision of the Queensland Industrial Relations Commission** had a significant financial impact on the Wide Bay Hospital and Health Service (WBHHS). Not only was Dr Gregory Coffey reinstated to his former position of District Director of Medical Services at the WBHHS but he was also awarded compensation for remuneration lost or likely to have been lost as a result of the dismissal.

Dr Coffey’s exemplary and unblemished experience spanned more than 40 years and included 5-years with the WBHHS. Dr Coffey’s performance appraisals had always been positive and his professional judgement as a medical practitioner and administrator had never been the subject of criticism. In his role with the WBHHS, Dr Coffey was responsible for the recruitment and retention of medical officers at three hospitals. However, following an independent investigation, the WBHHS terminated Dr Coffey’s employment on 28 September 2017 as Medical Director and the Chair of its Credentialing Committee for appointing Dr Jocobus Cloete, who allegedly had an identified alcohol issue, to an obstetrics position.

Despite the investigation report making no findings critical of Dr Coffey’s actions, the WBHHS dismissed Dr Coffey for reasons including that he had failed to “ensure the highest, professional and ethical standards were followed for the credentialing of Dr J Cloete“. In fact, the investigation report concluded there was “no evidence that the conduct of any WBHHS employee (excluding Dr Cloete) was deliberate or knowingly in breach of any relevant policy or procedure” and that “All witnesses impressed as cooperative and credible, and it is accepted that all witnesses were acting with the best of intentions in relation to the appointment and credentialing of Dr Cloete“.

Following the test established in Byrne v Australian Airlines Ltd, the Commission found that Dr Coffey’s “dismissal was harsh” because “it was disproportionate to the gravity of the misconduct in respect of which the employer acted” and that “the termination was unjust and unreasonable because Dr Coffey occupied no special or different position to anyone else on the Committee but appears to be singled out for special consideration for no obvious or apparent reason.”

Commissioner Thompson stated, “I have carefully considered the findings to substantiate each of the three allegations, relied upon as grounds for terminating his employment on 28 September 2017 and found each of the allegations were on the evidence and material before the Commission, on the balance of probabilities, incapable of being substantiated.”

*Courtney Murphy v ECEC Management Pty Ltd T/A Mooroolbark Child Care Centre [2019] FWC 3169

**Coffey v State of Queensland (Wide Bay Hospital and Health Service) [2019] QIRC 56 (5 April 2019)

The information in this article is for information purposes only and does not constitute legal advice. You should obtain specific advice relevant to your circumstances.

A new financial year is always a busy time for many payroll and human resources teams. It’s a time when performance and commission reviews might be due, salaries can increase and award rate changes need not only to be interpreted, but also implemented. The deadline of “the first full pay period on or after 1 July 2019” is a phrase which instills fear into many Australian workforce managers.

In June this year the Fair Work Commission (FWC) published its Annual Wage Review. The Fair Work Act 2009 (Cth) requires the Commission to review the National Minimum Wage and Modern Award minimum wages each financial year. The outcome of these reviews impacts all Australians employed under an Award, and flows on to many others. The 2017-2018 review estimated that “the number of employees who have their pay set by an award is estimated to be 2.3 million or 22.7 per cent of all employees”.

Any Modern Award minimum wage increase also impacts loadings, penalties, allowances and overtime payments which are calculated with reference to the Modern Award minimum wages. Similarly each 1 July there is a change to the high-income threshold for unfair dismissal applications. The high-income threshold for unfair dismissal applications will rise on 1 July 2019 from $145,400 to $148,700.
Over the past 6 years, we have also seen 1 July as a key date in a phased increasing of the superannuation guarantee. However this year this rate remains steady at 9.5%.

Under the Modern Award system, the wages for each classification are the lowest possible wage rate an employee can be paid. This means an employer cannot pay anything less than the minimum wage outlined the Award which applies. Often organisations make a decision to pay above the minimum wage rate. However, over time this can too easily become an underpayments issue. Any increases to the award wage, loadings, penalties and allowances each year need to be taken into consideration to ensure the employee doesn’t inadvertently fall below the minimum wage.

There is no doubt that the Australian wage system can be complex. Navigating your way through the National Employment Standards, National Minimum Wage, Modern Awards, Enterprise Agreements and contracting arrangements can often be described as a Pandora’s box. We see reminders of where things go wrong in the media regularly, with big business and household names being warned recently by the Fair Work Ombudsman Sandra Parker announcing that they would be taking a tougher approach to enforcement. Just this week it’s been reported that Domino’s Pizza have been the subject of a class action accusing them of misleading and deceptive conduct which alleges that it caused franchise operators to underpay thousands of “award workers” under old, substandard agreements as opposed to the Fast Food Industry Award. It’s estimated that if successful, the class action could cost Domino’s Pizza more than $240 million, a very expensive Pandora’s box in this instance.

As specialist employment lawyers, we often see the cost to an organisation of underpayment issues, often the result of inattention or human error. And the cost isn’t limited to repayment of wages, but often incurs legal fees, sometimes fines and bad publicity. Not to mention the productivity, cultural and morale issues that often remain with the workforce affected. We work with many clients from a risk management perspective to prevent these issues from impacting their business.

The information in this article is for information purposes only and does not constitute legal advice. You should obtain specific advice relevant to your circumstances.

Workdynamic promotes gender equity in its workforce by implementing flexible working arrangements and eliminating gender pay gaps.

This International Women’s Day and every day our team maintain a gender parity mindset and support our clients to do the same. #BalanceforBetter #IWD2019

The World Bank Organisation have identified that gender equality is a critical component of economic growth and recently published Women, Business and the Law 2019: A Decade of Reform outlining how women’s employment and entrepreneurship choices are affected by legal gender discrimination. Workdynamic Director and Principal, Jane Wright, was one of the 2000 lawyers worldwide who contributed to the report.

The report collates and examines ten years of data around the economic decisions women make as they go through their working lives and is intended as an objective measure of how the regulations and laws of the World Bank Group’s 189 member countries affect women’s incentives to participate in economic activity.

There was a worldwide improvement on average towards gender equality in the last ten years, however only six countries achieve a perfect score of 100 in terms of their laws treating men and women equally among the dimensions measured.

While Australia scores 96.88 on the WBL index, we still have considerable room to improve gender equality not only in terms of legislation, but significantly our ability to meaningfully implement these laws.

Workplace policies are an important way to implement frameworks to reduce both direct and indirect discrimination and implement workplace strategies to promote gender equality. For example, the Bankwest Curtin Economic Centre and Workplace Gender Equity Agency identified in their Gender Equity Insights 2019: Breaking through the glass ceiling report that

“Flexible workplaces and paid parental leave are key to staff retention. The loss of skilled workers represents a potentially significant cost to companies, both through the loss of experience and leadership, and through the costs of recruiting and training new appointees. Flexible workplaces with paid parental leave schemes are integral to retaining female staff members during and after pregnancy.”

Should your organisation wish to be on the forefront of gender equality, Workdynamic are well positioned to assist. Not only are we recognised as experts in this area, but we ‘walk the walk’ in our day to day business.

Image source: Women, Business and the Law 2019: A Decade of Reform

The information in this article is for information purposes only and does not constitute legal advice. You should obtain specific advice relevant to your circumstances.

Kate Peterson has been promoted to the position of Director at Workdynamic Australia.  Kate’s significant contribution as Executive Counsel over the past 3 years to the firm’s specialist employment law practice has been recognised by this appointment. 

“I am delighted to be commencing as a director at Workdynamic Australia, and look forward to continuing to work with clients and colleagues to strengthen our market-leading practice and our uniquely innovative and personable culture.” – Kate Peterson

Kate provides advice and representation for clients across a range of industries, and in matters requiring sophisticated strategic judgment and exceptional technical legal skills. Her outstanding knowledge and practical experience in workforce restructuring, including the successful planning of consultation, redeployment and redundancy processes in unionised sectors have benefited many Workdynamic clients.  Kate’s technical capability and interpersonal skills make her a sought after investigator, particularly in complex and sensitive matters.  A skilled litigator with experience in the conduct of complex Federal Circuit Court litigation and as an advocate in the Fair Work Commission and Coronial Courts, Kate is also a key part of the Workdynamic litigation team.

Kate commenced with Workdynamic Australia in January 2016.  She previously practised as a Senior Associate in the Workplace Relations team at Corrs Chambers Westgarth, and prior to that as a Workplace Relations and Safety Lawyer at Clayton Utz.

Kate’s outstanding experience in this specialist practice area is also reflected in her role as an Adjunct Lecturer teaching Advanced Employment Law and Workplace Investigations to postgraduate students at the University of Sydney.

Workdynamic also takes the opportunity to congratulate Kate on the birth of her first child in January 2019.  While Kate’s promotion to Director became effective during her parental leave,  we look forward to welcoming her return later in 2019 when she will resume her role in our leadership team. Until then the Workdynamic team can be contacted through any of the other Directors.

Workdynamic is delighted to announce the opening of a Melbourne office with the appointment of Kathy Dalton as Director.

Before joining Workdynamic Australia, Kathy was an employment law partner of two leading international employment law practices in Melbourne, K&L Gates and DLA Piper.

With a team of 19 lawyers already working for clients spread across the continent, Kathy is a significant addition to the Workdynamic team. Kathy has forged a reputation for being a highly trusted, knowledgeable and practical senior practitioner in her field. Her depth and breadth of experience and leadership establishing our Melbourne office, will allow us to expand our service offering in Victoria in relation to all aspects of workplace investigations, employment, industrial and discrimination law.

Kathy has been providing strategic workplace relations and employment law advice to leading employers for over two decades. She is relied on regularly by boards and senior decision makers to advise on business critical and high stake workforce issues. An experienced workplace relations advisor and litigator, Kathy’s technical employment law knowledge and its practical application across a broad spectrum of private and public sector industries including retail, health, construction, transport, technology and sport, complements the existing team.
Kathy’s responsiveness and proven experience developing practical and commercial workplace relations strategies which protect and strengthen business operations is valued by many clients.

“I’m thrilled to be joining Workdynamic to have the opportunity to help lead the growth of the firm and establish the Melbourne office. The strength and depth of Workdynamic as a specialist employment law practice offers a great platform from which to cement and grow strong client relationships. I’m very much looking forward to demonstrating the benefits of the firm to many more employers down south” – Kathy Dalton

The NSW Civil and Administrative Tribunal recently awarded $20,000 to a Department of Family and Community Services child protection case worker who was forced to take sick leave after her manager became concerned that the employee was discussing conspiracy theories with co-workers.

The case worker spoke with co-workers about her belief in a number of government cover-ups including that some people question whether the Earth is flat, that fallen angels came to earth and breed with humans to create giants and a theory about the Large Hadron Collider “shutting down” the Earth’s atmosphere.

The manager emailed the case worker to advise she had learned of the conversations and stated, “based on these conversations I have concerns about your well-being. To ensure the agency’s duty of care to yourself, other employees and clients is upheld, I am directing you on Sick Leave, effective immediately. Due to the reported conversations I will be engaging a case manager from Human Resources to liaise with yourself and your treating practitioner to determine your fitness for work.”

The case worker returned to work after seven weeks when her treating practitioner provided a report which noted her fitness to resume normal duties and stated, “…all the topics she was discussing were related to her leisure time reading and topics of interest she found in the Internet. She denied any strong beliefs attached to the topics of discussion.”

The NSW Civil and Administrative Tribunal considered that:

“the Anti-Discrimination Act defines ‘disability’ to include ‘a disorder, illness or disease that affects a person’s thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour’. We will call this kind of disability ‘mental illness’. Disability is further defined in s49A to include a disability ‘that a person is thought to have (whether or not the person in fact has the disability)’. We will call this an ‘assumed’ disability.“

The Tribunal determined that the case worker had been subjected to a detriment, however considered whether the direction to take sick leave met the direct discrimination statutory test of “differential treatment”. The Tribunal stated:

“According to the Department, the comparison should be made between the way [the case worker] was treated and the way a hypothetical employee who had the same conversation about conspiracy theories would have been treated. [The manager’s] evidence was that, “if any employee had made similar remarks or comments to those made by [the case worker], the response would have been the same regardless of any concerns about their mental health”. In other words, if another employee, who [the manager] did not think had a mental illness, had had the same conversations, she would have given that employee the same direction. With respect, that reasoning is not logical when the disability is an assumed mental illness. Inevitably [the manager] would have assumed that another employee who had animated conversations about conspiracy theories would also have had a mental illness.

The problem in this case is not with the Department’s submissions but with the way the differential treatment test is drafted. Where the disability is an assumed disability, and the person does not actually have that disability, the differential treatment element of direct discrimination does not reveal the true basis for the direction.”

The Tribunal further determined:

“We are satisfied that one of the true or genuine bases or the real reason for making the direction was that, based on the conspiracy theory conversations, [the manager] thought [the case worker] had a mental illness.
…
It follows that the Department has directly discriminated against [the case worker] on the ground of assumed mental illness.”

The Tribunal did not consider that it was appropriate for the Department to publish an apology for giving the case worker this direction. However, the case worker was awarded damages in the amount of $20,000.

Reminders to employers

Employers should consider the context of this decision when dealing with ill or injured employees or employees who are assumed to be ill or injured. In this instance, the direction to take sick leave without any assertion from the employee that she was unwell was determined to be unlawful.

 

The information in this article is for information purposes only and does not constitute legal advice. You should obtain specific advice relevant to your circumstances.

Two recent decisions in the Federal Circuit Court provide guidance for employers regarding the scope of the adverse action jurisdiction.

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