Recent developments in employment law

The latest issues, decisions and proposed changes impacting business and workplace risk 10 min read

Reminder: Get across the first tranche of Closing Loopholes reforms

By Mikaela Heise and Anya Plummer

The first tranche of the workplace law reforms introduced by the Fair Work Legislation Amendment (Closing Loopholes) Act 2023 (Cth) received Royal Assent in December 2023. We previously reported on some of these changes here.

Among this first tranche are changes to:

• criminalise wage theft;
• introduce a new industrial manslaughter offence under the federal work health and safety legislation; and
• the redundancy pay exemption for small businesses, meaning that they may still be required to pay redundancy pay in insolvency contexts.

As expected, the second tranche of the Closing Loopholes reforms has recently passed. Our insights on these changes are here.

Key takeaways

Employers should carefully consider how the new laws may impact their business and stay across these changes as they come into effect.

Employee use of social media

By Chloe Wilton, Courtney Ferguson and Joaquin Cross

A journalist's action against her former employer has sparked conversation regarding the circumstances in which an employer may take disciplinary action against an employee because of their conduct on social media. We reflect on the relevant principles and the steps employers can take to ensure they can, where appropriate, take action.

Key takeaways

Employers should:

• set clear expectations for employees' use of social media in and out of work hours, and as to potential consequences for non-compliance, by publishing and maintaining an up-to-date social media policy;
• educate employees on acceptable use of social media, with reference to any relevant policies and code of conduct; and
• clearly articulate why an employee's conduct regarding their social media use is unacceptable before taking disciplinary action against them.

Background

In late 2023, the Australian Broadcasting Corporation (the ABC) dismissed Ms Antoinette Lattouf after she shared a post on social media about the war in Gaza. She commenced legal proceedings against the ABC, on the basis that her employment was unlawfully terminated because of her political opinion, race, and national extraction or social origin. The ABC denies her claim.

The matter is currently listed for hearing before the Fair Work Commission. Ms Lattouf has subsequently brought separate proceedings in the Federal Court, alleging that the ABC breached its enterprise agreement when dismissing her.

General principles

• An employer may take action against an employee regarding social media use that may impact an employee's relationship with a colleague, damage the employer's interests or otherwise be incompatible with the employer's interests.
• An employee's use of social media that is inconsistent with obligations in their employment contract or the employer's policies or publicly stated positions may constitute misconduct.
• In the absence of relevant policies or express terms within a policy, some conduct may be objectively egregious and offensive such that it constitutes misconduct (eg sexual harassment of a colleague via social media).
• The gravity of conduct should be assessed by reference to the potential for harm, rather than the end consequence alone. This means the conduct need not actually damage the employer's interests but may have the potential to do so.
• While an employee might not have a large social media profile or following, this does not diminish the risk of potential damage to their employer.

Lack of procedural fairness makes a dismissal unfair

By Anthony Hallal and Anya Plummer 

A recent decision of the Fair Work Commission (the FWC) has highlighted the importance of procedural fairness when making a decision to terminate an employee's employment.^[1] Even where there is a valid reason for dismissal, a lack of procedural fairness can make it unfair. This case serves as a reminder for employers that it is important to get the process right when dismissing employees.

Key takeaways

• It is important that employers follow defensible procedures when dismissing an employee.
• A valid reason for dismissal does not excuse a failure to afford procedural fairness.

Background

Mr Ashburner was employed by St Marys Rugby League Club Ltd. From January 2023, he engaged in a series of interactions with his co-workers that ultimately led to the termination of his employment in June 2023.

Mr Ashburner claimed that the employer had no valid reason for his dismissal, and that he had been denied procedural fairness. The employer argued that there was a valid reason for his dismissal – ie his ongoing misconduct involving other employees, which gave rise to breaches of the organisation's bullying and harassment policy and sexual harassment policy – and that Mr Ashburner had been provided procedural fairness throughout the process of dismissal.

The decision

While the FWC found that there was a valid reason for dismissal, it determined that Mr Ashburner was unfairly dismissed, noting that the deprivation of procedural fairness may render a dismissal unfair even where it is otherwise justified.

It found that there were procedural fairness deficiencies in the dismissal process – in particular, that Mr Ashburner was not notified of the reason for his dismissal or given a proper opportunity to respond. He was not explicitly told that his employment was at risk until a dismissal meeting, by which time a decision to end his employment had already been made, and he was not provided with appropriate particulars of the specific allegations against him.

The FWC concluded that while there was a valid reason for the dismissal, there were 'significant procedural fairness deficiencies', and that Mr Ashburner was unfairly dismissed within the meaning of section 385 of the Fair Work Act 2009 (Cth).

Dismissal of employee who went MIA overseas upheld 

By Mikaela Heise, Eden Sweeney and Sarah Cass 

The Fair Work Commission has upheld the dismissal of an employee after he failed to attend work following an overseas holiday.² 

Key takeaways

Employers should:

• ensure that they have appropriate policies in place that set out clear expectations and parameters regarding the location of remote working arrangements; and
• have adequate systems in place to monitor employees accessing their IT systems and networks when working remotely.

Background

Mr Ren was employed as a research scientist at the Bureau of Meteorology (BoM), and was subject to a code of conduct and policies in relation to working remotely and accessing BoM's IT systems and networks.

Following a period of approved recreational leave when he travelled to the United States, Mr Ren failed to return to BoM's offices. Although he told BoM that he had returned to Australia and recommenced at work, he was unresponsive during work hours and failed to attend meetings. BoM also discovered that he had accessed BoM's IT systems and networks from the US without permission.

BoM directed Mr Ren to provide information regarding concerns that he had misinformed it as to his movements and accessed its systems from overseas; however, he failed to comply with these directions.

BoM investigated the matter. It eventually terminated Mr Ren's employment on the basis that he had breached the code of conduct and flouted BoM's policies regarding working remotely and accessing its IT systems, which ultimately resulted in a breakdown of BoM's trust and confidence in Mr Ren.

Mr Ren subsequently brought an unfair dismissal claim against BoM in the Fair Work Commission (the FWC).

The decision

The FWC ultimately upheld the dismissal, deciding that it was not harsh, unjust or unreasonable.

In reaching the decision, the FWC held that Mr Ren had:

• accessed BoM's IT systems without permission;
• worked from overseas without approval;
• made a false statement about his whereabouts; and
• failed to comply with BoM's lawful and reasonable direction to provide evidence about his movements.

The FWC also considered that the potential breaches to BoM's Commonwealth IT systems alone would have justified BoM taking decisive action against Mr Ren.

Injuries sustained during road rage fight were in the course of employment

By Sarah Lunny and Lara Duggan

The NSW Personal Injury Commission (the NSWPIC) has determined that a courier driver who sustained serious injuries during a road rage incident did so in the course of his employment.^[3]

Key takeaways

• For the purpose of workers' compensation legislation, an employee may be taken to have sustained injuries in the course of their employment even if they are engaging in conduct that is not strictly within their duties at the time that the injuries are sustained.
• Whether an employee's conduct will count as being in the course of employment will depend on the facts and circumstances of each case.

Background

An employee was performing his job as a courier driver when another driver overtook him and made rude gestures towards him. After the other driver stopped his car in front of the employee, blocking his passage forwards, the employee exited his vehicle to speak to the other driver. This interaction escalated to a physical altercation that resulted in the employee sustaining physical and psychological injuries. He lodged a workers' compensation claim.

In response to the claim, the employer's insurer denied liability, on the basis that the employee's injuries did not arise in the course of his employment, including because he had taken himself out of the course of employment when the injuries were sustained, by exiting the vehicle to engage with the other driver.

The decision

Emphasising that a worker is in the course of employment when doing something that is part of or incidental to the employee's service,^[4] the NSWPIC decided that the employee was in the course of his employment when he sustained the injuries.

Its decision was based on evidence suggesting that:

• although the employee had engaged in the physical altercation with the other driver, he had not instigated it; and
• the employee's goal in exiting his vehicle to speak to the other driver was to ascertain why the driver was blocking his path and attempt to resolve the issue, so he could continue with the performance of his courier work.

In the circumstances, the NSWPIC accepted that it was reasonable for the employee to exit his vehicle to engage with the other driver and that doing so had not taken him out of the course of his employment.