Walk Industrial Services Newsletter

WALK INDUSTRIAL SERVICESPTY LTD

NEWSLETTER N0. 3of 2014

Address: PO Box 5453, AlexandraHills QLD 4161

Mobile: 0431 882 549

Phone / Facsimile: (07) 3286 6008

Email:

Website:

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WIS encourages employers to review and consider their obligations, employment terms and conditions, policies, procedures and practices to ensure an industrially successful year.

OFFICE LOCATION

Walk Industrial Services Pty Ltd is located at:

Suite 3A, First Floor,

112-116 Bloomfield Street

CLEVELAND QLD 4163

Telephone: (07) 3286 6008

Facsimile: (07) 3286 6008

Website:

What is a support person entitled to do at a disciplinary interview?

One of the matters which the Fair Work Commission has to consider in deciding whether a dismissal has been unfair is any unreasonable refusal by the employer to allow the person to have a support person present to assist any discussions relating to dismissal (section 387(d) Fair Work Act).

But if a person facing a serious disciplinary meeting has a support person with them, what is that person entitled to do? Are they entitled to act as an advocate or representative?

The traditional understanding has been that a "support" person is there to do just that - ie provide support to the employee - and not to be a spokesperson or advocate for the employee. This is generally seen as a corollary of the proposition that the employer is entitled to communicate directly with the employee, and have the employee respond in person, about workplace disciplinary matters, rather than through a representative.

In a recent case, Victorian Association for Teaching of English Inc vs De Laps, the Full Bench of the Fair Work Commission came to conclusions consistent with this traditional understanding and confirmed that the employee was not entitled to have an advocate attend a disciplinary meeting.

Ms De Laps was an executive employee of VATE of 8 years standing. On 10 December 2012, she was invited to a meeting on 12 December to discuss her performance and conduct. The letter requesting her to attend the meeting said that she could bring a support person if she wished, but said "Please note that the role of the support person is to provide you with emotional support. The support person is not to act as your advocate and should not speak on your behalf".

Some testy correspondence ensued between the President of VATE and Ms De Laps. Ms De Laps said that the refusal to allow an advocate was one of a number of matters which showed that VATE would not give her a fair hearing, that the process was "simply a sham" to result, and that her dismissal was pre-determined. The date of the meeting was extended to 17 December, and further details were provided of the matters for discussion, but Ms De Laps tendered a written resignation before the meeting could take place.

Ms De Laps then commenced unfair dismissal proceedings, alleging constructive dismissal, ie that VATE's conduct left her with no alternative but to resign. The Commissioner who heard the case upheld the claim, finding that the employer's approach did not accord procedural fairness to Ms De Laps, one feature of which was the refusal to allow her to have an advocate. However in an appeal, the Full Bench of the Fair Work Commission noted the requirements of section 387(d) regarding a support person, but held that there was no other obligation under the Fair Work Act to allow an advocate. The appeal was upheld, and the claim dismissed, because the Full Bench decided that Ms De Laps was not forced to resign and had other viable alternatives.

Significance of this decision:

The decision in this case emphasises that the requirements of section 387(d) are limited.

Firstly, an employer is not obliged to raise the matter of the employee bringing a support person: the obligation is only that the employer "not unreasonably refuse" the employee the opportunity to have such a person present. Nevertheless, many employers, when setting up a serious disciplinary meeting, do inform the employee that they have that right, as a matter of good practice if not of legal obligation. It is also generally prudent to be flexible in arranging meeting times to allow the support person to attend.

However, assuming a support person attends, their role is not that of an advocate for the employee but to be there as a support. This might involve their attentive presence, or taking notes, or the support person suggesting to the employee points they should make, or questions they should ask, or information they should request, or suggesting when there should be a break from the meeting, particularly if the employee has become upset. Such a break is an opportunity for the support person to make suggestions for the further conduct of the meeting on the employee's side. These considerations apply regardless of the identity of the support person, whether he or she is a friend or work colleague, a family member, a lawyer or union representative.

However, if a support person attempts to act as an advocate, the employer is within its rights to request the person to desist, and if the support person's contribution prevents the meeting proceeding satisfactorily, the employer might consider terminating the meeting and setting it for another day with clear rules for any support person who attends that meeting

This decision tends to confirm that managing the reasonable and orderly conduct of a disciplinary meeting is within the employer's control.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

-Footnote: _18 June 2014 - Article by Stephen Booth, Coleman Greig Lawyers

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Fair Work finds making staff visit a company-picked doctor can be reasonable

Wednesday, 25 June 201, Andrew Sadauskas

The Fair Work Commission has found it is “reasonable” for an employer to nominate which doctor an employee needs to visit when assessing a medical issue.

The issue was raised in a case recently before the Fair Work Commission by a call centre employee named Shirley Menegola, who complained that triggers in the workplace were causing her to have asthma problems.

While Menegola provided her employer, West Australian power company Synergy, with medical reports from her own physician, Synergy insisted it needed medical assessments from a physician of its own choosing. Fair Work found the request to be reasonable.

In late 2011, Synergy managers met with Menegola to discuss her health issues and following the meeting Synergy took steps to try to alleviate possible triggers, including moving workstations, organising for the Asthma Foundation to deliver training sessions on the condition, and changing the cleaning products used by the company.

Despite these steps, Menegola continued to suffer health issues, such as hoarseness, which she linked to triggers such as the use of strong colognes and perfumes by her colleagues.

After raising concerns about these ongoing health problems with her workplace health and safety representative, Synergy held a series of meetings with their employee.

But on July 30, 2013, Menegola was stood down on full pay with a request to visit a doctor of Synergy’s choosing, despite providing information to the employer from her regular doctor.

Menegola provided further updates from her own doctor in September and was allowed to return to work.

However, upon her return she complained the issue hadn’t been resolved and contacted the Australian Services Union (ASU).During a series of meetings that followed, the ASU requested that Synergy should ban the use of colognes and perfumes in its workplace and that Menegola should be given the opportunity to work from home.

In response, Synergy stood down Menegola in order to investigate the union’s proposals and on November 6 told the ASU that the further medical assessments it requested were necessary.

“In order to consider either of the further significant adjustments suggested by Ms Menegola, our client needs to fully understand Ms Menegola’s medical condition, the limitations placed on her as a result, and the adjustments that would need to be made to the particular workplace in order to accommodate her condition and allow her to perform her role safely,” said the company in the letter.

“Only when our client has this information can it determine whether the adjustments are reasonable and practicable in all the circumstances.”

The Fair Work Commission sided with Synergy and found it was reasonable in the circumstances for Synergy to ask its employee to visit a doctor of its choosing.

“My decision is that, [Synergy’s] requirement for [Menegola] to attend a medical assessment, for the purposes of managing [Menegola’s] health and safety at work is reasonable,” the ruling states.

Employment lawyer Peter Vitale told SmartCompany a key issue in the case is an employer’s obligations in terms of occupational health and safety (OH&S) in the workplace.

“I think it recognises that employers have an overriding statutory duty on OH&S and that one measure it may need to take to satisfy those obligations is to get an independent assessment on an employee’s ability and fitness for work,” says Vitale.

“That may require directing an employee to visit a particular doctor.”

In a statement to SmartCompany, ASU WA branch secretary Wayne Wood says an appeal has been lodged over the decision, with a stay order issued pending finalisation of the appeal.

“[The] appeal applicant has sought further advice following the Decision by the Full Bench in Brisbane on 18th June 2014 [in regards to] Darrin Grant vs BHP Coal (C2014/3771). Parties are in discussions about the way forward in light of the Full Bench Decision,” says Wood.

Redundancy or not redundancy? The importance of proper process

The recent Fair Work Commission decision in Mr Georg Thomas v InfoTrak Pty Ltd T/A InfoTrak [2013] FWC 1134 highlights the importance for employers of considering both the substance and the process surrounding redundancy.

In this case, Mr Thomas, an Operations Manager of an IT company, brought an unfair dismissal case alleging that his redundancy was not ‘genuine’ because his employer had not discussed it with him or considered him for alternative positions.

Valid reason(s)

When considering the reasons for a proposed redundancy, there must not be any performance issues at play. The redundancy relates to the role and not the person. The role itself must no longer be required. In this case, Commissioner Roe held that there were valid reasons for the redundancy and that the employee’s role no longer existeddespite the employer previously raising some general performance issues with the employee.

Redundancy without consultation = unfair dismissal

Critically, however, the employer failed to consult with the employee about the proposed redundancy. The employee was covered by the Professional Employees Award which includes an obligation on employers to consult with employees where there is a major workplace change. A redundancy is a major change and the employer should have discussed the proposed change(s) and their adverse effects with the employee.

The employer’s failure to consult meant that the employee’s redundancy was not a ‘genuine’ redundancy as set out in the Fair Work Act. The dismissal was held to be unfair and an order was made for compensation of just over $10,000. Whilst redeployment may not have been very likely, the employer still had to discuss the changes and consider any possible options, with Commissioner Roe describing it as a “common sense matter” [para 39].

What does consultation mean?

Most awards or enterprise agreements include a provision which obliges employers to consult with employees in relation to potential redundancies. What does this mean in practice?

1. Offer a support person - An employee whose role is to be made redundant should be given sufficient notice of any meeting to discuss the proposed redundancy, and offered the opportunity to bring a support person to the meeting.

1. Consider all redeployment options - The employer needs to consider whether the employee can be redeployed to another position within the business or an associated enterprise. The redeployment options should be carefully canvassed and include consideration of positions which may involve less pay or a reduction in seniority. The options can then be discussed with the employee in the meeting.

1. Have a genuine discussion - At the meeting ensure that there is a genuine and interactive discussion which explains the nature of the changes and includes asking the employee for their input. This discussion is not to justify the reasons for the redundancy but rather to explore all possible options together with the affected employee. It is also an opportunity to put any other positions to the employee for their consideration and feedback.

The lesson for employers here is that a redundancy must be based on valid reasons and the correct process must be followed, for it to be considered genuine under the Fair Work Act. In particular, employers should be aware of their obligations to consult employees and consider all available redeployment options. Failure to follow the correct process or the mishandling of a situation may result in a redundancy becoming the subject of a subsequent claim.

Written by Andrew Bland. Sarah Waterhouse,Paralegal, BlandsLaw

Workplace Myths

Myth: Employees can be on call during a period of annual leave.

Fact: It’s our view that an employee can’t be on call during annual leave. Generally the employee has to retain a state of fitness for duty when they are on call, and this can restrict an employee’s social activities during annual leave. Because they cannot enjoy the full benefit of their annual leave and be on call at the same time, it’s our view that employees cannot be on call and on annual leave at the same time.

This myth came from the FWO’s website. WIS Pty Ltd agree with the facts.

Any Client seeking further information on issues mentioned in this newsletter or other issues please contact Kenneth J. Law on

(07) 3286 6008

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