Union delegates, employees privacy outside of the workplace, dismissing employees and casual workers

Contents

• Full bench of the Federal Court backs union delegate and finds adverse action
• Are employees entitled to complete privacy outside of working hours?
• Do you have a valid reason to dismiss your employee?
• I thought we were casual...

Full bench of the Federal Court backs union delegate and finds adverse action

A full bench of the Federal Court has overturned a finding that the Bendigo Institute of TAFE (TAFE) did not take adverse action against a union delegate. In doing so, the Federal Court has given further guidance as to the tests to be considered in relation to an adverse action claim.

In our previous update here, we outlined the original decision of the Federal Court.  Briefly, the case focused around events following the employee, Mr Barclay, who was also the sub-branch president of the Australian Education Union (AEU), sending an email to AEU members employed at the TAFE. In the email Mr Barclay alleged that a number of employees of the TAFE had been asked to take part in producing false or fraudulent documents in relation to an audit of the TAFE.

As a result of the email, the TAFE suspended Mr Barclay, blocked his internet access, required that he not attend the TAFE, and instituted an investigation.  The TAFE claimed that its action had nothing to do with the fact that Mr Barclay was a union official, and instead that the action was taken because Mr Barclay had breached his obligations as an employee by not informing the TAFE of the allegations, and refusing to provide details of the allegations to the TAFE (Actions).

In the first instance, the trial judge found in favour of the TAFE. However, in a split decision of a full bench of the Federal Court, Mr Barclay was vindicated. 

The majority of the full bench examined the functions of a union delegate, and found that a union delegate's role included representing or advancing the views of the union, providing advice on behalf of the union to its members, encouraging members of the union to contact the union to obtain support and advice, and retaining the confidences of members of the union.

The majority of the full bench then considered whether Mr Barclay was acting in his capacity as a union delegate (and sub-branch president) of the AEU in sending the email, and held he was doing so. The reasons for this included that Mr Barclay sent the email using his AEU email sign-off, and that he only sent the email to AEU members.

The TAFE admitted that it took the Actions against Mr Barclay because of the email he sent. As such, the court concluded that when the TAFE took the Actions against Mr Barclay, as Mr Barclay was acting in his role as a union delegate, the TAFE took the Actions for reasons that included his role as a union delegate. In reaching this conclusion, the court made it clear that the real reason for an employer taking action against an employee may be conscious or unconscious, and that even in circumstances where the real reason for taking certain action is unconscious, this will not excuse the adverse action.

In addition, the court held that the fact that the actions of Mr Barclay had the potential to seriously damage the reputation of the TAFE was irrelevant. The sole question to be answered was whether the Actions were taken for reasons which included Mr Barclay's activities as a union delegate. As the TAFE admitted it had taken the Actions because of Mr Barclay's email, the majority of the full bench found that the TAFE had taken adverse action against Mr Barclay in contravention of the Fair Work Act 2009 (Cth).

The case has been sent back to the original judge to determine what penalties or other orders should be made against the TAFE.

Key lessons for employers

This decision makes it clear that employers must carefully consider any action they intend to take against an employee so as to ascertain whether the reason for taking the action, even if it is not a conscious reason, may offend the adverse action provisions of the Fair Work Act 2009 (Cth). 

Further, in taking disciplinary or other action against a union delegate, employers will now need to carefully consider the capacity in which a union delegate is acting. In short, there are likely to be significant risks in an employer taking action against a union delegate if they are acting in their capacity as a union delegate. As the case makes clear, the functions of a union delegate are far reaching, and as was the case with Mr Barclay, may be inconsistent with their normal obligations to their employer as an employee.

Michael Cooper

Are employees entitled to complete privacy outside of working hours?

The Federal Court has recently confirmed the rights of an employer to monitor an employee's use of a work laptop computer, even when the computer was being used in the employee's home, outside of work hours and using the employee's own internet connection.

The employee was a senior member of the Australian Public Service working in the Commonwealth Department of Resources, Energy and Tourism (Department). During the span of eight days between May and June 2009, the employee used the Department's laptop to access lawful pornographic images. No-one else in the workplace was exposed to the images. The accessing of the images occurred at the employee's home, predominantly over the weekend, and the employee used his own internet connection.

Whilst the employee cleared his internet browser history, the Department had installed software onto the laptop which took a snapshot of the employee's desktop every 30 seconds.  Some weeks after the pornography was viewed, an audit was performed and the software recorded snapshots of the employee using Google to search for the pornography, the pornography itself, and snapshots of the employee deleting the browsing history.

The Department undertook an investigation into the employee's conduct and found that he had breached the Australian Public Service Code of Conduct (Code) which contains various policies including those requiring employees to comply with any lawful and reasonable direction given by the Department. The Department also found that the employee had breached the Department's policy prohibiting employees from using the Department's facilities to access pornography. 

The Department ultimately dismissed the employee for his conduct, and for his dishonest statements during the Department's investigations into the allegations.

The employee commenced proceedings in the Federal Court and made various claims, including that the Department's policies were unlawful or unreasonable, that they infringed his common law and equitable rights relating to privacy, and that they contravened the International Covenant on Civil and Political Rights (ICCPR), which states that 'no one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation'.

However, the court held that 'it is not unfair to warn a person that their computer use will be monitored in order to detect any accessing of pornography and then to do so'. As the employee had been warned by the Department about the policies, the court found that the employee's alleged common law right to privacy had not been breached, and as such, there was no breach of the ICCPR.

The court also accepted that the laptop was the Department's property and that the Department had a right, as its owner, to proscribe the uses to which it could be put. 

Key lessons for employers

This case is a further example of the conduct of an employee outside of work forming a valid basis for the taking of disciplinary action against an employee, provided there is a sufficient connection with the employee's employment.

Employers should take steps to identify what conduct of an employee outside of work may pose a risk to their business. If employers identify conduct which may pose a risk to their business, they should review their policies and procedures to ensure they adequately outline the requirements imposed on employees.

Kimberly Statham

Do you have a valid reason to dismiss your employee?

A full bench of Fair Work Australia has recently confirmed an employer's right to dismiss an employee for significant safety breaches.  In doing so, the full bench has highlighted the importance of having a valid reason for dismissing an employee.

The employee was engaged as a forklift operator.  The employer conducted an investigation into the employee's conduct as a result of an alleged breach of safety while the employee was using a forklift.  After the conclusion of the investigation, the employer concluded that the employee had engaged in an unsafe act by raising the tines of his forklift while they were not properly engaged with a load and placing his arms, head and shoulders under the load.  The employer considered the employee's actions to be grossly negligent and dangerous.  Further, the answers provided by the employee during the investigation process were also inconsistent with those provided by other employees that had witnessed the incident.  

As a result, the employee was summarily dismissed, and he applied to Fair Work Australia for an unfair dismissal remedy.

At first instance, Fair Work Australia held that the employee's actions amounted to serious misconduct in that he caused a serious and imminent risk to the safety of himself and others.  As such, Fair Work Australia was satisfied that there was a valid reason for the termination of the employee's employment.  After making this finding, Fair Work Australia went on to consider the other relevant considerations in relation to an application for an unfair dismissal remedy.  Relevantly, Fair Work Australia held that the employee's actions were not wilful or negligent, and were merely careless, with a failure to properly appreciate the consequences of his actions.  Combined with the employee's length of service, his prior disciplinary history, and the fact that the employer did not have a zero tolerance health and safety policy, Fair Work Australia held that the dismissal of the employee was harsh, and ordered that he be reinstated.

On appeal however, a full bench of Fair Work Australia overturned the original decision and held that the employee's conduct involved deliberate acts and that the characterising of his action as careless did not derogate from the seriousness of his actions, or the possible consequences to himself and other employees.

The full bench stated that 'the finding of a valid reason is a very important consideration in establishing the fairness, of a termination'.  Having found a valid reason for termination amounting to serious misconduct and compliance with the statutory requirements for procedural fairness it would only be if significant mitigating factors are present that a conclusion of harshness is open'.

The full bench found that there were no significant mitigating factors present in the employee's case, and held that if the employer 'was entitled to take the action ... the need to enforce its safety rules suggests that the resultant termination is not harsh'.

Key lessons for employers

This case confirms the importance of having a valid and defensible reason for dismissing an employee.  It also makes it clear that in circumstances where an employee is being summarily dismissed, and the dismissal is for a valid reason, it is only significant secondary matters which may cause the dismissal to be considered unfair. 

Stewart Rinkevich

I thought we were casual...

A recent decision of the Federal Court has highlighted that a casual employee may not actually be a casual employee, and may be entitled to a permanent employee's entitlements under applicable legislation.

The employee was engaged by MacMahon Mining Services Pty Ltd (MacMahon) as a casual miner from 9 November 2006 until 16 December 2007. The terms of the employee's employment were recorded in a letter of employment which relevantly provided that he:

• was engaged on a casual basis
• was paid a 'Flat Hourly Rate' which compensated him for, amongst other things, a loading in lieu of paid leave entitlements
• was required to work 12 hour shifts on a two weeks on / one week off roster
• could be dismissed by the provision of one hour's notice.

The employee worked on a roster requiring him to work seven consecutive day shifts, then seven consecutive night shifts, followed by seven days off. This arrangement continued throughout the majority of his employment.

On 16 December 2007, MacMahon gave the employee notice of the termination of his employment in accordance with his letter of employment. 

The employee subsequently brought a claim in the Federal Magistrates Court seeking a payment from MacMahon for various amounts, including his unpaid accrued annual leave. Importantly, under the applicable legislation, a 'casual' employee was not entitled to a payment for annual leave.

In considering the employee's claim, the court held that although the characterisation of his employment as a casual employee was relevant, as was the fact that he was paid an all up rate expressed to include a payment for leave entitlements, there were a number of factors which indicated his employment was not actually casual. These included that:

• the employee was expected to be available, on an ongoing basis, to perform the duties required of him
• the employee worked in accordance with a stable, organised and certain roster
• there were no significant fluctuations in the work
• the employee had certainty as to his working hours, with regular starting and finishing times.

On this basis, the court held that the employee was not actually a casual employee, and as such was entitled to a payment in lieu of annual leave on the termination of his employment. Further, the court held that MacMahon could not rely on the payments it had made to the employee in his all up rate to satisfy the employee's entitlement to annual leave as there was a prohibition in the relevant legislation preventing an employer from contracting out of the leave entitlements. Finally, the court imposed a penalty of $14,850 on MacMahon as a result of its breach of the applicable legislation.

MacMahon appealed the decision of the Federal Magistrates Court to the Federal Court, taking issue with the findings of the Federal Magistrates Court that the employee was entitled to annual leave, and that it could not rely on the all up rate paid to the employee to satisfy the annual leave entitlements. 

In considering the appeal, the Federal Court held that a casual employee was an employee 'who works only on demand by the employer' and that 'the essence of casualness is the absence of a firm advance commitment as to the duration of the employee's employment or the days (or hours) the employee will work'.

Given the court's view as to what constituted casual employment, the court held the employee was not a casual employee, and upheld the original decision. Further, the court agreed that the term of the employee's contract which sought to contract out of the employee's annual leave entitlement was not enforceable at law due to the terms of the relevant legislation.

Key lessons for employers

Employers should review the manner in which they engage casual employees to determine whether those employees are, in reality, employed on a casual basis. In doing so, employers should consider whether the employees are working only on demand, or whether the employees have an advance commitment as to the duration of their employment or the days or hours they will work. If casual employees do not appear to be employed on a casual basis, employers should consider taking steps to reclassify the employees as part-time or full time employees.

Juvena Hannan and Kimberly Statham

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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.