the workplace newsletter - february 2017
TRANSCRIPT
www.kadenboriss.com
In this issue: Welcome to the first edition of “The Workplace” for 2017. We trust 2017 has started well for you and
we look forward to working with you again this year.
In this edition;
Laura Gallagher discusses a recent case where an employee who absented himself from the
workplace due to a panic attack was found not to have resigned;
I examine cases which discuss whether termination for misconduct can be linked to underlying
medical conditions for the purposes of discrimination law; and
Olga Sashko considers a recent District Court case where an employee of a hospital sued his
employer after the hospital took blood and urine samples as a result of him being intoxicated.
* From the corner office
* Worker unfairly
dismissed after leaving
work due to panic
attack
* Gambling addiction and
theft - can the two be
linked?
* Intoxicated worker
unsuccessfully sues for
employer’s request for
alcohol screening
* Our team
The Workplace SUMMER 2017
From the Corner Office
by Mark Curran, Partner
UPCOMING EVENTS
Medico-Legal
Society of
Queensland
2015
Conference
28-29
August 2015
medico-legal.com.au
The Workplace
In Mr A v The Respondent [2016] FWC 8631, the Applicant had worked for the Respondent for
approximately a year when, on 14 July 2016, he advised he was leaving, without providing an
explanation for his departure. The Applicant took various belongings with him upon his departure.
On 19 July 2016, after failed attempts to contact the Applicant, the Respondent emailed the Applicant
confirming his exit had been interpreted as a voluntary termination of employment and requested all
company items be returned.
The Applicant instituted proceedings pursuant to section 394 of Fair Work Act 2009 (“the Act”), which
provides relief to an employee who has been dismissed, if that dismissal is deemed harsh, unjust or
unreasonable. Pursuant to section 386 of the Act, an employee is dismissed if the employment has
been terminated on the employer’s initiative, or the person was forced to resign their employment
due to conduct engaged in by the employer.
The Applicant alleged his employment had been terminated in a way that was inconsistent with the
Small Business Fair Dismissal Code and that the termination was harsh, unjust and unreasonable.
Further, the Applicant submitted his exit should not be viewed as a resignation in circumstances
where he left due to a panic attack that he had perceived as “an immediate threat to his health and
safety”. However, the Respondent submitted that a deterioration of the Applicant’s attitude and work
performance over a number of months, in addition to advice received from an employer association
and the Fair Work Ombudsman, lead to a conclusion that the Applicant had left the employment of his
own volition.
The Fair Work Commission noted the Applicant’s evidence that increased unreasonable demands had
been made of him in the period leading up to the dismissal and that this had exacerbated mental
health issues of which the Respondent had previously aware. The Respondent gave evidence that he
could not recall being made aware of any mental health issues.
In deciding whether the dismissal was unfair, the Fair Work Commission held it was first necessary to
determine whether a dismissal had actually taken place, noting a termination at the employer’s
initiative is an “essential characteristic of to the concept of dismissal”. In its decision, the Fair Work
Commission referred to the case of O’Meara v Stanley Works Pty Ltd1, where it was held that
Worker unfairly dismissed after leaving work due to panic attack by Laura Gallagher, Solicitor
An employee who left work due to a panic attack was unfairly dismissed, after their
employer misinterpreted the exit as intent to resign. The Fair Work Commission found
that the employee was dismissed by the employer, and that dismissal was harsh, unjust
and unreasonable, even in circumstances where the employment relationship was
substantially strained and the employer had significant concerns with the employee’s work
performance and attitude prior to the dismissal.
UPCOMING EVENTS
Medico-Legal
Society of
Queensland
2015
Conference
28-29
August 2015
medico-legal.com.au
The Workplace EMPLOYMENT LAW… cont.
determining whether a termination was at the initiative of the employer required an “objective
analysis of the employer’s conduct” to determine whether it was likely to result in resignation or was
of such a nature that the employee had no choice but to resign. It was held the issue therefore turned
on whether the Applicant actually resigned when he left the workplace on 14 July 2016.
The Commission highlighted the significant difficulties in relation to a lack of evidence and noted that
there would have been “absolutely no basis for doubt” about the Applicant’s continued employment
if he had advised the Respondent he was leaving work to go to the doctor. It was noted that further
doubt arose due to the Respondent being unable to contact the Applicant following his exit from the
workplace. Accordingly, it was held there was not sufficient evidence that the Applicant had resigned,
and the Respondent had in fact made a decision in relation to the Applicant’s employment by way of
their email on 19 July 2016. As such, the termination was at the initiative of the employer and a
dismissal had occurred.
In accordance with section 387 of the Act, the Fair Work Commission then found there had not been a
valid reason for dismissal. In consideration of attempts to contact the Claimant after his exit, it was
held the Respondent had provided an opportunity for the Applicant to respond to the proposed
termination. The Fair Work Commission also identified the nature of the Respondent’s company,
noting the absence of dedicated human resource management expertise as a mitigating factor
towards any findings of unfairness.
The Commission held that while the “soured relationship” between the parties could have contributed
to a conclusion that the Applicant had in fact resigned, there was no actual evidence to suggest the
Applicant had resigned. As such, the Fair Work Commission held the termination of the Applicant’s
employment was harsh, unjust and unreasonable in circumstances where the dismissal was based on
inference rather than facts.
The Fair Work Commission considered that even if the Applicant had returned to work, evidence of a
“significant suite of issues” was not conducive to on-going employment. Accordingly, the Applicant
was awarded two week’s pay in compensation.
Implications
The Fair Work Commission considered the matter could have concluded differently if the Applicant
had been more “fulsome” in his reasons for departure, or more willing to communicate with the
Respondent following his departure. This highlights the importance of communication in employment
relationships. This case also emphasises the need for employers to exercise caution in circumstances
where there is uncertainty as to whether an employee has resigned in order to protect themselves
from unfair dismissal claims.
For more information on this case or an unfair dismissal case please contact Laura Gallagher on (07)
3013 2752.
1 (2006) 58 AILR 100
UPCOMING EVENTS
Medico-Legal
Society of
Queensland
2015
Conference
28-29
August 2015
medico-legal.com.au
The Workplace
The Facts
In the case, the Applicant alleged she was discriminated at work on the grounds of a persistent
depressive disorder that manifested in the form of a pathological gambling addiction. The Applicant
was employed as a shop assistant by the Salvation Army. She had provided her employer with a
document outlining her previous struggle with gambling (and theft) and her ongoing recovery.
The Applicant was suspended from her position pending an investigation and immediately resigned.
The investigation related to customer complaints and a failure to follow directions. The Applicant
later became aware that various complaints of theft had been made against her, and she contended
she was treated less favourably than another person on the ground of her disability (gambling
addiction).
Reasoning of the Tribunal
The Tribunal could not find any evidence of discrimination during or after the disciplinary process.
Even if the alleged misappropriation were contemplated by the decision maker, there was no
evidence to show a connection between the misappropriation and the Applicant’s gambling addiction.
In other words, the Tribunal could not infer the Applicant’s gambling played a role in the disciplinary
process. Further, there was no evidence of the Applicant gambling during the course of her
employment. On the contrary, it appeared the problem had resolved. The Tribunal was therefore not
satisfied the Applicant suffered persistent depressive disorder at the relevant time or that it
manifested in gambling behaviour.
Further, there was no relevant case law determinative of whether a gambling addiction constituted
disability. The medical experts were in dispute as to whether gambling could constitute an
“addiction.” The Tribunal did not feel it necessary to determine whether a persistent depressive
disorder, problem gambling or a gambling addiction constituted a disability for the purpose of the Act.
Gambling addiction and theft - can the two be linked? by Mark Curran, Partner
In what circumstances can an employee with a gambling addiction accused of theft bring a
discrimination claim? The recent case of Hinder v Salvation Army (NSW) Property Trust (No. 3)
[2017] NSWCATAD 16 sheds some light on this issue. There are two central issues:
1. Is there any evidence to show a connection between the theft and the gambling
addiction?
2. Is gambling addiction a disability under discrimination laws?
UPCOMING EVENTS
Medico-Legal
Society of
Queensland
2015
Conference
28-29
August 2015
medico-legal.com.au
The Workplace
EMPLOYMENT LAW… cont.
A Similar Case
This case is also similar to the decision of State of Victoria (The Office Public Prosecutions) v Grant
[2014] FCAFC 184 in which the Applicant suffered a long term anxiety condition with excessive
consumption of alcohol and bouts of depression. After a series of allegations of misconduct were
made and substantiated, the Applicant’s employment was terminated. The Applicant argued he was
terminated on the basis of his mental illness, rather than the misconduct, in that his condition
manifested itself through his misconduct. The Full Federal Court found that medical evidence did not
expressly or impliedly link the misconduct to the illness, so the Court could not conclude the two were
inextricably linked. The close relationship between the adverse action and the alleged prohibited
reasoning did not mean the two could not be separated.
Conclusion
It follows that in cases where applicants seek to allege that misconduct was a manifestation of a
medical condition they will have to produce medical evidence to show that the medical condition
caused the misconduct or was a manifestation of it. Decision-makers in such circumstances should also
be careful that they discipline the employee solely because of the misconduct and not any medical
condition, or symptoms thereof. Further, the Courts have not yet determined whether a gambling
addiction constitutes a disability for the purposes of discriminations laws.
For more information on this case or advice on a discrimination matter please contact Mark Curran on
(07) 3013 2751.
UPCOMING EVENTS
Medico-Legal
Society of
Queensland
2015
Conference
28-29
August 2015
medico-legal.com.au
The Workplace
Following this incident, Mr Pere alleged that he had sustained a psychiatric injury due to the Hospital’s
conduct when taking the tests. In particular, Mr Pere alleged that the blood sample was taken
without his consent and reported that a female nurse had observed his genitals as he supplied the
urine sample.
At trial, his Honour, Judge Butler, dismissed the Plaintiff’s claims of negligence and assault against the
Hospital. Significantly, in reaching this decision, his Honour preferred the testimony of other Hospital
workers and generally found the Plaintiff to be an unreliable witness.
As to the claim of assault by taking the blood samples without consent, his Honour was mindful that
the Hospital was in a position of power and that this may have influenced the giving of consent.
Nonetheless, the Plaintiff’s account of not giving consent was considered implausible and inconsistent
with the more credible accounts of the doctor and nurse on duty at the time. The Plaintiff had
demonstrated an ability to speak on his own behalf at the time the sample was taken and was not so
intoxicated that he did not appreciate the process that was explained to him. Accordingly, his Honour
determined the blood was taken with consent and therefore there was no assault.
As to the Plaintiff’s claim of negligence, his Honour noted that the Hospital owed a duty of care to take
reasonable care for the safety of Mr Pere by virtue of his position as an employee. Nonetheless, his
Honour did not consider that the Hospital had breached its duty of care. Having regard to his
Honour’s findings about the Plaintiff’s credit and consent, he also accepted the nurse’s account that
the Plaintiff would have been given his own private toilet stall to provide the urine sample. His
Honour considered that, having regard to his previous findings, a reasonable person would not have
foreseen a not insignificant risk of psychiatric injury when requiring an employee to provide blood and
urine samples.
This case serves as a cautionary tale for employers taking any action against an employee, whether it
is disciplinary or in relation to an investigation. In taking such action, employers must have regard to
Intoxicated worker unsuccessfully sues for employer’s request for alcohol screening
by Olga Sashko, Senior Associate
The Queensland District Court has dismissed claims of negligence and assault after Hospital
workers took blood and urine samples from an intoxicated employee.
In Pere v Central Queensland Hospital and Health Service [2017] QDC 2, Mr Pere, a Fire Safety
and Security Officer at the Gladstone Hospital, presented to work on 2 August 2012 in what
appeared to be an intoxicated state. He was requested to attend the emergency department of
the Hospital to undertake blood and urine tests. The results of the tests established a blood
alcohol concentration of 0.2 grams/litre, or four times the legal limit.
UPCOMING EVENTS
Medico-Legal
Society of
Queensland
2015
Conference
28-29
August 2015
medico-legal.com.au
The Workplace WORKERS’ COMPENSATION LAW… cont.
consideration of factors unique to each worker, such as cultural background, gender differences,
general disposition, and any other indicators that the request would cause them psychological
distress. In such instances, employers are also reminded to ensure the details of the action taken are
written down, to avoid the risks associated with a “he-said she-said” situation.
The Plaintiff is appealing this matter further. Interestingly, it appears that he will do so while
self-represented, as was the case in the District Court. We shall keep abreast of any developments of
this matter and keep you updated accordingly.
For more information on this case please contact Olga Sashko on (07) 3013 2747.
Level 7, 231 George Street
Brisbane QLD 4000
GPO Box 74
Brisbane QLD 4001
Phone: +61 7 3013 2700
Fax: +61 7 3003 0788
www.kadenboriss.com
Our Team
Laura Gallagher, Solicitor
T 07 3013 2752
Jamie McPherson, Partner
T 07 3013 2701
Damien van Brunschot, Partner
T 07 3013 2702
Damian Hegarty, Snr Associate
T 07 3013 2731
Olga Sashko, Snr Associate
T 07 3013 2747
Employment, Workplace Health & Safety and Workers’ Compensation
The Workplace
Hamish Broadbent, Partner
T 07 3013 2708
Mark Curran, Partner
T 07 3013 2751
Belinda Hughes, Special Counsel
T 07 3013 2733
Meenakashi Jansen, Solicitor
T 07 3013 2750