July-12 CONTENTS 1 Employee reinstated after swearing at his boss: - - PDF document

July-12 CONTENTS 1 Employee reinstated after swearing at his boss: Australia's unfair dismissal regime at work 2 Drug Testing Policy: Is Yours Appropriate? 3 Introduction of "Dad and Partner Pay" 4 "Tough But Necessary": New South Wales cuts back on WorkCover entitlements 1 Employee reinstated after swearing at his boss: Australia's unfair dismissal regime at work A Commissioner of Fair Work Australia, Australia's workplace relations tribunal, has recently made

• rders in an unfair dismissal application brought by an employee who was summarily dismissed for

swearing at his employer (as well as other alleged misconduct) in Craig Symes v Linfox Armaguard Pty Ltd [2012] FWA 4789. Commissioner Cargill was satisfied that the employee had sworn directly at his supervisor and hit a roster board with some force out of frustration, all whilst wearing a loaded gun. Notwithstanding this conduct, Commissioner Cargill found that the dismissal which followed these incidents was harsh in the context of a workplace where "bad language is commonly used" and ordered that Linfox Armaguard Pty Ltd (Company) reinstate the employee and make any back payments (although these payments were

• rdered to be reduced by 6 weeks' pay as a penalty for the employee's role in the dismissal).

Importantly, in considering whether reinstatement was an appropriate remedy in the circumstances, Commissioner Cargill relied on the employee being a long standing employee, who had not been involved in any disciplinary matters in the past. Therefore, although Commissioner Cargill commented that "there may be some tension caused" by the employee's return, she was satisfied that the working relationship between the parties could be restored. The decision underlines the importance of employers, particularly those with dedicated human resources management specialists such as the Company in this decision, carrying out fair disciplinary procedures prior to making any decisions to terminate employees on the basis of alleged misconduct. The decision also highlights the significant risk of reinstatement where employers are unable to conciliate or mediate unfair dismissal disputes. As reinstatement is the primary remedy under the Fair Work Act, employers should be aware that a successful unfair dismissal application may result in more than simply the payment of compensation.

2 Drug Testing Policy: Is Yours Appropriate? Fair Work Australia has recently handed down its decision in Endeavour Energy v CEPU [2012] FWA 1809, an application brought by a union objecting to Endeavour Energy's proposal to introduce a new drug testing policy last year. The most interesting aspect of the decision is Senior Deputy President Hamberger's explanation of Fair Work Australia's "harm reduction" approach to drug testing. Simply put, employers' policies must be justifiable in terms of reducing risk at the workplace. SDP Hamberger referred to a previous tribunal decision in which he had previously said that "testing is an intrusion on the privacy of the individual which can only be justified on health and safety grounds" and added that illegal drugs might be consumed "in [the employee's] own time and in no way affect their capacity to do their job safely". Moreover, the decision underlines the importance of ensuring that policies address those risks actually faced by any particular employee in performing his or her role. Although SDP Hamberger accepted that low blood alcohol concentration limits were appropriate for high-risk employees (for example, those working at height or with high voltages), he commented that they would not be appropriate for employees in office roles. In other words, a blanket rule covering all employees would most likely be found to be unreasonable. The decision is important for Australian employers, as testing for intoxicants (including illegal, prescribed and non-prescribed drugs such as alcohol) is well-established in many Australian workplaces, particularly those where heavy machinery, volatile substances or high-risk processes are used. Employers should ensure that any global drug testing policies they have in place which apply to Australian employees are reviewed, as they may well be considered unreasonable and unenforceable in

• Australia. In particular, "zero tolerance" policies and "facility-wide" policies, which apply to all employees

at a site regardless of role, should be examined from the Australian law perspective. 3 Introduction of Dad and Partner Pay The Federal Government has recently passed legislation expanding Australia's paid parental leave scheme to provide for "dad and partner pay". Under the Paid Parental Leave and Other Legislation Amendment (Dad and Partner Pay and Other Measures) Bill 2012, eligible fathers and partners will be provided with financial support to stay at home for two weeks following the birth or adoption of a child from 1 January 2013. The payment will be made at the rate of the national minimum wage (the same weekly rate at which existing entitlements to parental leave are paid) and will be available to eligible full-time, part-time, casual, seasonal, contract and self-employed dads and partners who are caring for the child, either primarily or as part of joint care. In order to be eligible for the payment, dads and partners (which include adoptive parents and parents in same-sex couples) will need to meet certain tests, including: (i) an income test, being that the employee has earned AUD 150,000 or less in the previous financial year; (ii) a work test, being that the employee has worked at least 330 hours in 10 of the 13 months before the birth of the baby; and (iii) a residency test, being that the employee is an Australian resident. "Dad and partner pay" is available in addition to any employer-funded leave or unpaid parental leave, however the employee must not be working or on paid leave during the period in which they are receiving the payment.

4 "Tough But Necessary": New South Wales cuts back on WorkCover entitlements The Workers Compensation Legislation Amendment Bill 2012 has passed New South Wales

• parliament. Under the Bill, there will be some significant reforms to WorkCover, New South Wales'

worker's compensation scheme. The reforms involve significant cuts to worker's compensation benefits. Under the Bill, weekly benefits will be reduced after 13 weeks (which is in contrast to the current system which provides full benefits for 26 weeks) and a one year cap for the payment of medical benefits will also be introduced, with an exemption for the seriously injured. Furthermore, no compensation will generally be payable for heart attacks, strokes and their underlying diseases. Also, controversially, no compensation will be payable for injuries sustained on trips to and from work (journey claims), except for work, workers compensation

• r training related journeys.

There have been mixed responses to the reforms. The proposal of the Bill led to the Fire Brigade Employees' Union conducting a highly publicised strike which ultimately resulted in amendments exempting firefighters and other emergency services workers from the changes. By contrast, the Bill has been welcomed by employers and employer bodies who will benefit from the savings which are said to have allowed the government to avoid having to significantly increase worker's compensation insurance premiums (which are already between 20 and 60 percent higher in New South Wales than in Victoria and Queensland) to deal with a more than 4 million dollar deficit. If you have any questions arising out of the contents of this Update, please do not hesitate to contact Adam Salter by email at asalter@jonesday.com or by phone on +612 8272 0514.