Often it is difficult to identify a consistent pattern or theme when reflecting on recent or anticipated developments in the law.
Employment law is frequently criticised for being too difficult – too full of loopholes, too hard for employers and employees to understand, and too full of technicalities which are perceived to produce inconsistent or unfair results. There is also a regular criticism that employment law does not keep pace with how workplaces actually operate and the realities they face on a day-to-day basis.
While the past 12 months certainly have not been immune from such criticism there has also been an encouraging number of cases where pragmatic decisions made at the workplace level have been upheld despite some imperfections, including in the key areas of workplace bullying, unfair dismissal and workplace safety. As the year ahead no doubt brings further change, it will be interesting to see whether this apparent trend continues.
An example of the apparent trend towards pragmatic decisions is the anti-bullying case of Ms SB  FWC 2104.
The Fair Work Commission’s anti-bullying jurisdiction does not appear to be as popular as first anticipated. Overall claim numbers are relatively low and despite claims potentially also being available to various categories of non-employees, very few complaints of this nature are actually made. Even fewer proceed to hearing, with the vast majority either withdrawn early in the Commission’s case management process or resolved in the course of proceedings.
In the case of Ms SB the Commission was required to consider whether an employer’s decision to investigate bullying allegations against a senior employee was unfair, and whether the employer’s conduct contributed to an alleged “campaign” of bullying and harassment of the employee by her subordinates. The employer argued that while the allegations made against the senior employee were ultimately found to be unsubstantiated, its decision to investigate them was nonetheless reasonable management action undertaken in a reasonable manner and therefore did not constitute bullying under the Fair Work Act 2009 (Cth).
There were some flaws in the employer’s investigation process. However, the Commission ruled that management action does not need to be perfect or ideal to be considered reasonable. While some of the complaints made against the employee were relatively minor, the Commission considered that the employer’s decision to investigate them was nonetheless a prudent response that a reasonable employer would make.
Frequently employers are concerned that if they commence disciplinary action or complaint investigations it will lead to claims of harassment, bullying or “workplace stress”. Unfortunately this perception can place real barriers in the way of identifying and responding to legitimate workplace concerns. However, the decision in Ms SB should provide some comfort that perfection is not required and that provided an employer has rational grounds for taking action and goes about things in an overall reasonable manner, minor flaws or imperfections along the way should not result in the entire process being invalidated.
A similarly pragmatic approach was taken in the unfair dismissal matter of Sicolo v Accolade Wines Australia Limited  FWC 5920.
Unfair dismissal claims continue to constitute the bulk of the Commission’s dispute resolution work and while a larger number are settled at conciliation, a much greater proportion proceed to trial compared to workplace bullying complaints.
The Sicolo case involved an employee in the wine industry who was dismissed after returning positive alcohol breath tests. He was a forklift driver, and the employer’s policy was that he needed to have a zero blood alcohol reading while at work. However, the policy was new and had been implemented on a trial basis at only one of several sites operated by the employer.
After the employee returned a positive reading on a third test a dispute arose about whether it would be fair for the employer to dismiss him given the “trial” nature of the policy. The worker also argued that termination of employment was harsh given that he was a longstanding employee with an otherwise clean disciplinary record, was close to retirement age and resided in a remote area with limited job opportunities. There was also a question about whether it was fair for the policy to arbitrarily impose blood alcohol limits which did not necessarily measure impairment for work.
The Commission accepted that notwithstanding some imperfections in the employer’s processes, dismissal of the employee was justified. In reaching that decision, the Commission was particularly concerned about the safety hazards associated with employees operating vehicles and machinery while under the influence of alcohol. Importantly, it also accepted that the employer had a right to impose the standards of conduct it expected of its employees (including standards relating to the consumption of alcohol and drugs in their own time if it could affect their work) and that the employee’s conduct when the employer’s concerns were raised with him gave no comfort that he would change his behaviour to meet the employer’s expectations in the future.
This case provides encouraging news for employers who sometimes find it hard to balance the strict obligations which exist under workplace health and safety laws with their obligation to provide a “fair go all round” when taking disciplinary action under employment law.
Workplace health and safety
Developments in workplace health and safety law have also caught attention over the last 12 months. With most jurisdictions now having harmonised laws in place, decisions are starting to be made about how the laws operate and the likely consequences of a breach.
One of the most significant changes achieved by the harmonisation process was the introduction of due diligence obligations for officers, which require senior managers and decision-makers in a business to take personal responsibility for ensuring compliance with workplace health and safety laws.
It is unquestionable that senior personnel have an important responsibility for showing leadership on safety matters. However, many officers affected by the new laws have been unsure about what this means in a practical sense and how it affects their work on a day-to-day basis.
The decision in McKie v Al-Hasani and Kenoss Contractors Pty Ltd (in liq)  ACTIC 1 provides some guidance.
The case concerned a truck driver who was electrocuted and killed when the bucket of his vehicle made contact with low hanging overhead powerlines at a worksite used to store materials for a nearby road surfacing project.
A Project Manager was employed at the site. He was aware of the risks associated with the powerlines. After the fatality, the Project Manager was charged with failing to exercise due diligence by ensuring the business complied with its obligation to ensure the worksite was safe.
The Court held that while the Project Manager had an important role in managing particular projects, his position was less significant in the business’s wider organisational structure. It ruled the Project Manager was not an officer under workplace health and safety laws and therefore did not have a personal duty to exercise due diligence with respect to health and safety matters. Instead, that obligation rested with other more senior people who had greater decision-making authority and influence.
The circumstances of this case were unquestionably tragic. However, the duty to exercise due diligence with respect to health and safety matters is a serious obligation. It makes sense that the obligation should only be imposed on persons with sufficient authority to discharge the duties which the obligation imposes. The Court’s finding that an individual’s role in a business needs to be considered in the context of the overall hierarchy and limits to their decision-making authority rather than their position on a particular job or task is another example of a pragmatic decision which reflects the reality of how many businesses function on a day-to-day basis.
The year ahead
Undoubtedly 2016 will see further developments in employment law. A Federal election is likely to provide opportunities for debate about various important workplace legal issues, including the availability of individual employment agreements, penalty rates, the regulation of registered industrial organisations and workplace productivity. With average wages outcomes remaining subdued, trade unions will probably also continue to press for non-cash improvements to terms and conditions of employment, including the ability for employees to donate sick leave to colleagues who are ill and paid leave for employees who are the victims of domestic violence. The likely commencement of the Small Business and Unfair Contract Terms Bill 2015 (Cth) will also affect how employers use certain types of standard form small business contracts, including for labour hire and consulting arrangements.
It can only be hoped that the pragmatism evident over the last 12 months will continue as these developments occur throughout the forthcoming year.
The above article was provided by Clare Raimondo at HWL Ebsworth. Clare has broad expertise in employment & workplace relations matters, having practised as a registered industrial advocate before joining the legal profession. Her work encompasses all aspects of the employment relationship, advising and representing employers on a range of workplace legal issues including industrial & employment, enterprise bargaining, workplace health & safety, workers compensation and discrimination matters.